BR (BANGLADESH) v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZCA 267

BR (BANGLADESH) v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION ANDEMPLOYMENT [2018] NZCA 267 [23 July 2018]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPLICANTS AND OF THEIR CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATIONACT 2009. SEEhttp://www.legislation.govt.nz/act/public/2009/0051/latest/DLM1440836.htmlIN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA149/2018[2018] NZCA 267BETWEEN BR (BANGLADESH)ApplicantsAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: 16 July 2018Court: Brown, Clifford and Gilbert JJCounsel: R S Pidgeon for ApplicantsK G Stephen and S M Earl for RespondentJudgment: 23 July 2018 at 3.00 pmJUDGMENT OF THE COURTA The application for leave to appeal to the High Court on a question of lawis declined.B The application for leave to commence judicial review proceedings inthe High Court is declined.C We make no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] The applicants are a married couple and their five-year-old son. The familycame to New Zealand from Bangladesh in October 2015. They lodged a claim forrefugee and protected person status claiming fear of serious harm if they returned tothat country. This was primarily because of the husband's claimed membership andactivities in the Bangladesh Nationalist Jubo Dal, the student wing of the BangladeshNational Party. They also claimed that their son was at risk of serious harm if returnedto Bangladesh because of the lack of medical care to treat his condition. He suffersfrom severe autism and seizure disorder.[2] The claim for refugee and protected person status was dismissed by a refugeeand protection officer. The applicants appealed to the Immigration and ProtectionTribunal (the Tribunal) but their appeal was dismissed on 16 May 2017.1 The Tribunalfound that their claim was not credible and there was no real chance they would faceserious harm if they returned to Bangladesh on account of the husband's politicalaffiliations and background. The Tribunal also found that the availability of medicalcare available for the son in Bangladesh did not engage the Convention Relating tothe Status of Refugees.[3] The applicants also appealed to the Tribunal against their liability fordeportation on humanitarian grounds. Such an appeal may only be granted in thelimited circumstances set out in s 207(1) of the Immigration Act 2009:207 Grounds for determining humanitarian appeal(1) The Tribunal must allow an appeal against liability for deportation onhumanitarian grounds only where it is satisfied that—(a) there are exceptional circumstances of a humanitarian nature thatwould make it unjust or unduly harsh for the appellant to bedeported from New Zealand; and1 BO (Bangladesh) [2017] NZIPT 801041–43.(b) it would not in all the circumstances be contrary to the publicinterest to allow the appellant to remain in New Zealand.[4] The applicants claimed there were exceptional circumstances that would makeit unjust or unduly harsh for them to be deported from New Zealand because of theirson's medical condition. The applicants say their son's condition has improved sincethey have been in New Zealand due to the superior care and treatment he receives here.The applicants say that the full extent of specialist medical and educational supporttheir son requires is not available in Bangladesh and the family cannot afford the carethat is available even though the husband is tertiary qualified with a degree in businessadministration.[5] The applicants' appeal on humanitarian grounds was dismissed by the Tribunalon 27 July 2017.2 The Tribunal found there were exceptional circumstances of ahumanitarian nature because of the reduced care and educational opportunitiesavailable in Bangladesh to meet the son's medical and educational needs.3However, the Tribunal did not consider these circumstances were such that it wouldbe unjust or unduly harsh for the applicants to be deported from New Zealand in termsof s 207(1)(a) of the Act. The first limb of the test under (a) not having been met,the Tribunal did not consider it necessary to address the further requirement unders 207(1)(b).[6] The applicants applied to the High Court for leave to appeal on questions oflaw and for judicial review of the Tribunal's decision. They identified two issues asjustifying consideration in the proposed further appeal and by way of judicial review.First, they argued that because the Tribunal found their case met the criterion ofexceptional circumstances of a humanitarian nature in s 207(1)(a), it necessarilyfollowed that it would be unduly harsh and unjust to deport them. Second, they arguedthat the Tribunal erred in finding that it would not be unjust or unduly harsh to deportthem.2 BR (Bangladesh) [2017] NZIPT 502795–96 [Tribunal decision].3 At [47].[7] The leave application was declined by Duffy J in a judgment delivered on23 February 2018.4 The Judge found that the Tribunal had applied the correct andwell-settled test in s 207(1)(a) of the Act.5 The Judge considered that the second issueinvolved a proposed challenge to factual findings in the assessment of the unjust orunduly harsh requirement.6 The Judge considered that the Tribunal's decision wasreached in accordance with proper process and could not be faulted in terms of thelegal tests applied.7 In short, the Judge considered that the leave application did notidentify any question of law or any issue of general or public importance justifying afurther appeal or review proceedings.[8] Where the High Court declines leave, this Court may grant leave for an appealto the High Court on a question of law and/or to commence judicial reviewproceedings in that Court.8 The applicants now apply for such leave.Leave to appeal on questions of law[9] In determining whether to grant leave to appeal, the Court must have regard towhether the proposed question of law is one that, because of its general or publicimportance, or for any other reason, ought to be submitted to the High Court for itsdecision.9[10] Mr Pidgeon, for the applicants, submits that the Tribunal erred in law by failingto apply the statutory test in s 207 of the Act. He argues that the Tribunal:(a) conflated the three-part test;(b) misconstrued stage 2 of the test; and(c) failed to undertake any assessment under s 207(1)(b).4 BR (Bangladesh) v Chief Executive of the Ministry of Business, Innovation and Employment[2018] NZHC 234.5 At [16].6 At [17].7 At [19].8 Immigration Act 2009, ss 245(1) and 249(3).9 Section 245(3).[11] Having carefully considered Mr Pidgeon's written and oral submissions, weare not persuaded that the proposed appeal raises a seriously arguable question of law.[12] The Tribunal plainly did not conflate the three-part test. It followedwell-settled authority10 in considering whether there were exceptional circumstancesof a humanitarian nature11 before turning its attention to the second element, whetherthis would make it unjust or unduly harsh to deport the applicants from New Zealand.12Because it was not satisfied on the second element under s 207(1)(a), the Tribunal didnot consider the second limb of the test under s 207(1)(b).13[13] It is also clear that the Tribunal identified correctly the second element of thetest in s 207(1)(a), specifically referring to and applying the Supreme Court's decisionin Guo v Minister of Immigration.14 Mr Pidgeon argued that the Tribunal wronglytook account of public interest considerations at this stage of the analysis, being thecost to the public health system and the integrity of the New Zealand immigrationsystem. He said that these matters were more properly examined under thesecond limb in s 207(1)(b). However, the Supreme Court stated in Guo that the publicinterest is not immaterial to the second element of the enquiry under s 207(1)(a)although it is primarily relevant to the application of s 207(1)(b).15 We are notpersuaded that any arguable error of law has been demonstrated on this ground.[14] Mr Pidgeon's third point is that the Tribunal erred by not considering thesecond limb of the test under s 207(1)(b). This is his principal complaint as weunderstand it. He says that while the tests under (a) and (b) are viewed throughdifferent lenses, one focusing on the applicant's personal circumstances and the otherrequiring a public focus, the "and" between s 207(1)(a) and (b) is a coordinatingconjunction requiring that equal emphasis be given to each part of the test. For thatreason, he says the Tribunal could have started by considering (b) before even lookingat (a). At the very least, he argues the Tribunal was required to defer any final10 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104; Guo v Minister ofImmigration [2015] NZSC 132, [2016] 1 NZLR 248.11 Tribunal decision, above n 2, at [18] and [22]–[47].12 At [48]–[54].13 At [56].14 Guo v Minister of Immigration, above n 10.15 At [9].assessment under (a) until it had also considered all relevant circumstances under (b).He submits that by not assessing all relevant public interest considerations unders 207(1)(b), the applicants were deprived of their entitlement to a proper considerationof all their circumstances. Despite Mr Pidgeon's careful submissions, we cannotaccept that this proposed question of law is arguable in view of the Supreme Court'sjudgment in Ye:16The first step is to determine whether there are exceptional circumstances ofa humanitarian nature that would make it unjust or unduly harsh for the personconcerned to be removed from New Zealand. If that is not shown, the inquiryends there and removal takes place.[15] The application for leave to appeal to the High Court on a question of law mustaccordingly be dismissed.Leave to commence judicial review proceedings[16] In determining whether to grant leave to commence judicial reviewproceedings, the Court must consider whether the proposed review proceedingsinvolve issues that could not be adequately dealt with in an appeal.17 If so, the Courtmust consider whether the issues sought to be raised on judicial review ought to besubmitted to the High Court for review because of their general or public importanceor for any other reason.[17] Mr Pidgeon seeks leave to commence judicial review proceedings that wouldraise the following issues:(a) the Tribunal erred in law by failing to take account of the child's rightsunder international conventions;(b) the Tribunal breached the applicant's legitimate procedural expectationby failing to consider all three parts of the test under s 207; and16 Ye v Minister of Immigration, above n 10, at [30].17 Immigration Act, s 249(6).(c) the Tribunal took into account irrelevant considerations when assessingthe second element of the test in s 207(1)(a), namely public interestconsiderations.[18] The first proposed ground of review is not seriously arguable. The Tribunalmade specific reference to the United Nations Convention on the Rights of the Child,noting that the son's best interests were a primary consideration.18 The other twoproposed grounds of review replicate in different language the issues sought to beaddressed in the appeal on questions of law. If we had been persuaded that either ofthem was seriously arguable, we would have given leave to appeal on a question oflaw rather than allow them to be dealt with by way of judicial review. For thesereasons, the application for leave to commence judicial review proceedings must bedeclined.Result[19] The application for leave to appeal to the High Court on a question of law isdeclined.[20] The application for leave to commence judicial review proceedings inthe High Court is declined.[21] We make no order for costs.Solicitors:Integritas Law Firm Auckland, for ApplicantsMeredith Connell Auckland, for Respondent18 Tribunal decision, above n 2, at [32].