VAILAGILALA v MINISTER OF IMMIGRATION [2021] NZHC 1310

VAILAGILALA v MINISTER OF IMMIGRATION [2021] NZHC 1310 [4 June 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-507[2021] NZHC 1310UNDER the Immigration Act 2009IN THE MATTER of an application for leave to appeal adecision of the Immigration and ProtectionTribunalBETWEEN ESAU VAILAGILALAApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: 2 June 2021Appearances: C F Godinet for the AppellantBCL Charmley and G Niven for the RespondentJudgment: 4 June 2021JUDGMENT OF GORDON JThis judgment was delivered by meon 4 June 2021 at 2 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Crown Law, WellingtonCFL Godinet, AucklandIntroduction[1] The applicant, Esau Vailagilala, is liable for deportation under a deportationliability notice served on him on 1 November 2016. The notice was issued as aconsequence of Mr Vailagilala's conviction for murder on 8 March 2013 for offendingthat occurred on 14 October 2011, which was within two years after Mr Vailagilalafirst held a New Zealand residence class visa.1 On 30 April 2013, Mr Vailagilala wassentenced to life imprisonment with a minimum period of imprisonment of thirteenand a half years. The minimum period will expire in January 2026. At that time,Mr Vailagilala will be liable to be deported to Samoa.[2] Mr Vailagilala appealed his liability for deportation to the Immigration andProtection Tribunal (Tribunal) on humanitarian grounds. Although the Tribunal foundthere were exceptional circumstances of a humanitarian nature, balancing thoseagainst the very serious crime Mr Vailagilala committed, the Tribunal held it would beneither unjust nor unduly harsh for him to be deported.2[3] Mr Vailagilala now applies to this Court for leave to appeal the Tribunaldecision under s 245 of the Immigration Act 2009 (the Act) which empowers this Courtto grant leave to appeal a decision of the Tribunal on a question of law. The Ministerof Immigration (Minister) opposes the application.Decision of the Tribunal[4] Before the Tribunal, Mr Vailagilala submitted that there were exceptionalhumanitarian circumstances arising out of his connections to New Zealand through hisfamily that would make it unjust or unduly harsh for him to be deported from NewZealand.[5] Specifically, Mr Vailagilala's case was that his family members live in NewZealand. His birth parents, four siblings, his brothers' partners and children, an uncleand aunt on his father's side and an uncle and two aunts on his mother's side, and1 Immigration Act 2009, s 161.2 Vailagilala v Minister of Immigration [2021] NZIPT 600380 (Tribunal decision).many cousins live in New Zealand. Mr Vailagilala's only family in Samoa (where helived until he was 17 years old) are his aunt and grandmother.[6] Mr Vailagilala said deportation would break his bonds and end his fellowshipwith his siblings. He said he wanted to remain in New Zealand with his family wherehe can support his family and have a better future.[7] Further, Mr Vailagilala submitted there were other exceptional humanitariancircumstances that would make it unjust and unduly harsh for him to be deported,including:(a) He would be living in a country where he has no financial support. Hewould be isolated from his family. By the time of his release fromprison he would not have lived in Samoa for 17 years;(b) If Mr Vailagilala's birth parents are deported to Samoa (they have beenunlawfully in New Zealand since 22 December 2007) he would beunable to financially support them; and(c) Samoa does not offer rehabilitation facilities for Mr Vailagilala.[8] On the final limb of the statutory test, Mr Valagilala submitted it would not becontrary to the public interest for him to remain in New Zealand.[9] The Minister submitted that Mr Vailagilala's circumstances, considered aloneor cumulatively, were not exceptional circumstances of a humanitarian nature. Norwould deportation be unjust or unduly harsh. Any exceptional circumstances of ahumanitarian nature needed to be balanced against Mr Vailagilala's offence, which thesentencing Judge described as a "very savage attack".3 The Minister also submittedthat Mr Vailagilala had not established that it would be contrary to the public interestfor him to remain in New Zealand.3 R v Uhrle HC AK [2013] NZHC 922 at [11].[10] The Tribunal's conclusion on exceptional circumstances of a humanitariannature was:4[75] Taking into account the appellant's likely difficulties in readjustmentto any society when released from a long prison sentence, the presence of most(if not all) of his immediate family in New Zealand, the limited family supportavailable in Samoa, his close relationship with his twin brother in NewZealand and the obligations of New Zealand in respect of the rights to family(such as under the ICCPR), the Tribunal is satisfied that there are exceptionalcircumstances of a humanitarian nature in the appellant's case.[11] However the Tribunal found that departure from New Zealand would not beunjust or unduly harsh.5 The reasons were:(a) The seriousness of Mr Vailagilala's charge of murder, committed withinthe first two years he was in New Zealand, outweighed his exceptionalhumanitarian circumstances;6(b) Mr Vailagilala had been physically separated from his family since hewas imprisoned in 2013;7(c) Mr Vailagilala grew up in Samoa for the first 17 years of his life;8(d) For most of the time Mr Vailagilala has spent in New Zealand, he hasbeen imprisoned;9 and(e) As his birth parents are unlawfully in New Zealand, if they aredeported, they could provide emotional support to Mr Vailagilala.10[12] The Tribunal concluded:11[82] Weighing the seriousness of the appellant's offending (murder)against the exceptional humanitarian circumstances (likely separation frommost, if not all, of his immediate family in New Zealand, if deported to4 Vailagilala v Minister of Immigration, above n 2.5 At [4].6 At [79].7 At [81].8 At [69].9 At [74].10 At [71].11 Vailagilala v Minister of Immigration, above n 2Samoa), the Tribunal is satisfied that it is not unjust or unduly harsh for theappellant to be deported from New Zealand.[13] Having found that it was not unjust or unduly harsh for Mr Vailagilala to bedeported from New Zealand, the Tribunal considered it was unnecessary to considerthe public interest stage of the inquiry under the statutory test.Proposed grounds of appeal and opposition[14] Mr Godinet, for Mr Vailagilala, submits the Tribunal erred in law when, havingfound that there were "exceptional circumstances of a humanitarian nature", it thendecided that it was not unjust or unduly harsh to deport Mr Vailagilala from NewZealand on the following grounds (as set out in the amended notice of application):(a) The Tribunal failed to have consideration and proper regard to the factthat Mr Vailagilala, whilst serving his sentence of thirteen and halfyears of imprisonment, to date has not received rehabilitativeintervention treatment and for the balance of the term of sentence – toexpire in 2026 – Mr Vailagilala will not receive or undergorehabilitative treatment;(b) The failure to provide Mr Vailagilala with rehabilitative interventiontreatment means that he is prevented from receiving education towardshis reintegration into society so as not to pose a risk to the safety of thecommunity; and(c) Mr Vailagilala's ability to reintegrate into the community is caused andimpeded by this failure.[15] In support of the proposed grounds of appeal Mr Godinet relies on a reportdated 7 January 2021 of a registered clinical psychologist, Greg Woodcock, who gaveevidence on behalf of Mr Vailagilala at the Tribunal. In brief, Mr Woodcock gaveevidence on Mr Vailagilala's risk of reoffending and his relationships with his family.He also "encouraged" the prison service to waitlist Mr Vailagilala for the "SailiMatagi" programme, which is a rehabilitative programme offered by the New ZealandDepartment of Corrections to Pasifika prisoners who are serving a sentence for aserious or violent offence.[16] Mr Vailagilala says that the questions of law by reason of their general or publicimportance ought to be considered by this Court. He also says the "any other reason"part of the statutory test is engaged because of the failure of the Department ofCorrections to provide rehabilitative intervention treatment.[17] The response of the Minister in summary is that this Court ought not grantleave to appeal because: no seriously arguable question of law is identified; thematerial put forward by Mr Vailagilala on rehabilitation was considered by theTribunal; and any complaint about the extent of consideration is a matter of weightthat could not amount to an error of law. The threshold for an error of law that justifiesleave is not met as the Tribunal applied the correct and well-settled test forhumanitarian appeals.SubmissionsApplicant's submissions[18] Mr Godinet submits that the Tribunal failed to consider and have proper regardto the lack of rehabilitative intervention treatment for Mr Vailagilala during his periodof imprisonment. Mr Godinet says that treatment would assist in Mr Vailagilala'sreintegration into society and would lower Mr Vailagilala's risk to the community.[19] Mr Godinet submits the release of Mr Vailagilala into the Samoan communitywithout rehabilitative intervention treatment after thirteen and a half yearsimprisonment demonstrates a lack of care and a breach of duty of care toMr Vailagilala, the New Zealand public and the Samoan public. In support of thatsubmission, Mr Godinet refers to Mr Woodcock's report where Mr Woodcock said:"It is unconscionable to release Mr Vailagilala into the Samoan or New Zealandcommunities without him undergoing such intervention".[20] He submits Mr Vailagilala's situation is analogous to the "homegrown" issuein Helu v Immigration and Protection Tribunal, where Elias CJ characterised theappellant's offending as "home grown".12[21] Mr Godinet submits that for the Tribunal to find it was not unjust or undulyharsh to deport Mr Vailagilala without proper consideration and due regard to thisissue is an error of law because the Tribunal found exceptional circumstances of ahumanitarian nature existed on the facts.[22] Mr Godinet notes that having determined it was not unjust or unduly harsh forMr Vailagilala to be deported, that removed the need for the Tribunal to consider the"public interest" stage of the inquiry under the statutory test. He nevertheless goeson to submit that a failure to provide rehabilitative intervention treatment to enableintegration into the community is relevant to both the "unjust and unduly harsh" limbof the test (s 207(1)(a)) and whether the offender's remaining in New Zealand iscontrary to the public interest (s 207(1)(b)). For both of these limbs, the Tribunal isrequired to make an overall judgment of the circumstances.13 By not giving properconsideration to the failure to provide rehabilitative treatment, the Tribunal did notconsider all matters relevant to an overall judgment.Respondent's submissions[23] Mr Niven, for the Minister, submits the Court should not grant leave to appeal.He says first, if Mr Vailagilala's complaint is an alleged failure by the Tribunal toconsider the availability or non-availability of rehabilitation since Mr Vailagilala wasimprisoned, the material put forward by Mr Vailagilala was considered by theTribunal. Therefore, there was no arguable error of law.[24] If the complaint is that there was an insufficient consideration by the Tribunalas to the availability or non-availability of such a programme, that is a matter ofweight, which in this case, does not amount to an error of law.12 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [169]–[170].13 At [169]–[170].[25] In response to Mr Godinet's reliance on Helu, Mr Niven submits the part of thejudgment relied on relates to the public interest test in s 207(1)(b).14 This was an issuenot reached by the Tribunal as it concluded deportation would not be unjust or undulyharsh. In other words the Tribunal was not satisfied s 207(1)(a) was made out. In anyevent, the offending was not "homegrown" in the sense used in Helu. Mr Vailagilalacame to New Zealand in December 2009 aged 17 years and the offending occurred inOctober 2011. In Helu, the appellant had been in New Zealand since early childhood.[26] Mr Niven submits the Tribunal applied the correct and well-settled test forhumanitarian appeals and therefore, the threshold for error of law that justifies leaveis not met. In particular, the assessment of the "unjust or unduly harsh" limb must bemade in the light of the reason the person is liable for deportation, which in this caseis serious offending. The Tribunal applied that test.15[27] In response to Mr Godinet's submission that the threshold for leave is metbecause Mr Vailagilala has not yet received and is unlikely to receive rehabilitativetreatment, Mr Niven says that claim misunderstands the leave test, which must relateto the Tribunal's consideration of the issue, not the rehabilitation availability itself.Any complaint about the extent of rehabilitative opportunities in prison is not an issueof law that establishes an arguable error of law in the Tribunal's decision.[28] Mr Niven submits even if Mr Godinet were to reframe the claimed legal errorreferred to in [27] above to meet the legal test, a failure to consider the availability ofrehabilitation (such failure is denied) would not be an issue of general or publicimportance because it does not go beyond the particular circumstances ofMr Vailagilala.16 Nor would it have been likely to alter the weighing exercise requiredby s 207(1)(a), particularly in light of the seriousness of Mr Vailagilala's offending.14 Helu v Immigration and Protection Tribunal, above n 12, at [167]–[170].15 Vailagilala v Minister of Immigration, above n 2, at [76] citing Guo v Minister of Immigration[2015] NZSC 132, [2016] 1 NZLR 248 at [9].16 Singh v Chief Executive of the Ministry of Business, Innovation and Employment[2018] NZHC 972, [2018] NZAR 1120 at [24]–[28].[29] Mr Niven submits that this is not a case where any alleged errors meet the "anyother reason" threshold in s 245(3) of the Act. It is not a case of individual injusticesuch that this Court could simply not countenance the Tribunal's decision standing.17Law[30] There are two statutory provisions the Court must consider. First there is s 245of the Act pursuant to which the Court may grant leave to appeal. It 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 (beingeither the person who appealed or applied to the Tribunal, an affectedperson, or the Minister, chief executive, or other person) is dissatisfiedwith any determination of the Tribunal in the proceedings as beingerroneous in point of law, that party may, with the leave of the HighCourt (or, if the High Court refuses leave, with the leave of the Courtof Appeal), appeal to the High Court on that question of law.(2) In determining whether to grant leave to appeal under this section, thecourt to which the application for leave is made must have regard towhether the question of law involved in the appeal is one that byreason of its general or public importance or for any other reasonought to be submitted to the High Court for its decision.(3) On the appeal, the High Court must determine the question orquestions of law arising in the proceedings, and may then—(a) confirm the decision in respect of which the appeal has beenbrought; or(b) remit the matter to the Tribunal with the opinion of the HighCourt, together with any directions as to how the mattershould be dealt with; or(c) make such other orders in relation to the matter as it thinks fit.[31] In deciding whether to grant leave under this section the Court must consider:18(a) Whether there is a question of law;17 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721at [8].18 Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [8], citing Taafi vMinister of Immigration [2013] NZAR 1037 (HC) at [19].(b) Whether the question of law is seriously arguable; and(c) Whether the question of law is of sufficient importance to be submittedto the High Court, either:(i) By reason of general or public importance; or(ii) For any other reason (which requires an exceptional caseinvolving injustice to such an extent the Court simply could notcountenance the Tribunal's decision standing).[32] This Court has previously emphasised that the introduction of a leaverequirement indicates a deliberate intention by Parliament to limit appeals and reviewsof Tribunal decisions.19[33] In assessing whether an issue is one of general or public importance or for anyother reason should be submitted to the High Court, the question is similar to thatwhich applies to second appeals. Upon a second appeal the Court is not engaged in ageneral correction of error.20[34] If the application has little or no prospect of success, it follows that the issuesare of limited general or public importance. This militates against leave.21[35] Challenges to the weight which the Tribunal accords to aspects of the evidencebefore it will seldom amount to an error of law. As was said by Katz J in Nabou vMinister of Immigration:2219 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 16, at[26] citing Nabou v Minister of Immigration, above n 18, at [6]; SK v Immigration and ProtectionTribunal [2014] NZHC 2693 at [5]; Guo v Immigration and Protection Tribunal [2014] NZHC804 at [52]; and DO v Immigration and Protection Tribunal [2016] NZHC 3158 at [38].20 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 16,citing Waller v Hider [1998] 1 NZLR 412 (CA) at [413].21 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 16,citing Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at[36]; and Rupal v Immigration and Protection Tribunal [2018] NZHC 422 at [33].22 Nabou v Minister of Immigration, above n 16 at [9] cited in AB v Refugee and Protection Officer[2017] NZHC 1424 at [33]; and AH v Immigration and Protection Tribunal [2017] NZHC 1880at [29]. See also Guo v Immigration and Protection Tribunal, above n 19, at [55], [79] and [105];De Borja v Removal Review Authority [1999] NZAR 471 (HC) at 476; and Minister ofImmigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [34], where Harrison J noted that"the weight to be given to particular factors was solely within the Tribunal's statutory function".Value judgments made by the Tribunal in balancing and weighing thecompeting factors arising in any given case will seldom amount to an error oflaw.[36] The second statutory provision is s 207 which sets out the test the Tribunalmust consider in determining a humanitarian appeal: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 naturethat would make it unjust or unduly harsh for the appellant tobe deported from New Zealand; and(b) it would not in all the circumstances be contrary to the publicinterest to allow the appellant to remain in New Zealand.(2) In determining whether it would be unjust or unduly harsh to deportfrom New Zealand an appellant who became liable for deportationunder section 161, and whether it would be contrary to the publicinterest to allow the appellant to remain in New Zealand, the Tribunalmust have regard to any submissions of a victim made in accordancewith section 208.[37] In this case, the Court is concerned with the "unjust or unduly harsh" limb ofthe test. In Guo v Minister of Immigration,23 the Supreme Court discussed thisexpression as follows:24 It has been held that the expression "unjust or unduly harsh" is compositein nature and that the Tribunal need not inquire separately as to whetherdeportation would be (a) unjust or (b) unduly harsh. Whether deportationwould be "unjust or unduly harsh" is to be assessed in light of the reasons whythe appellant is liable for deportation and involves a balancing of thoseconsiderations against the consequences for the appellant of deportation. Thepublic interest is not immaterial to the application of s 207(1)(a) but isprimarily relevant to the application of s 207(1)(b). In determining whetherdeportation would be unjust or unduly harsh, the primary focus is on thepersonal circumstances of the person in respect of whom deportation isproposed and those of immediate family members who will be affected by thatperson's deportation.23 Guo v Minister of Immigration, above n 15.24 At [9]DiscussionAlleged failure to consider availability or non-availability of rehabilitation[38] As Mr Niven notes, it was Mr Vailagilala's responsibility to establish his caseand to do so he needed to ensure all information, evidence and submissions he wishedto be considered was before the Tribunal.25 Mr Vailagilala put forward the followingmatters:(a) Mr Woodcock's recommendation that the Saili Matagi programme beprovided to Mr Vailagilala and that the Department of Corrections wasunlikely to offer it; and(b) Counsel's submissions that there are no rehabilitative facilities inSamoa and Mr Vailagilala had not had any rehabilitation.[39] On the first issue, the Tribunal did consider Mr Woodcock's recommendationand evidence as follows:26[54] Mr Woodcock states that the appellant would benefit from arehabilitation programme [55] Mr Woodcock states that this programme is one of the few availablein the Samoan language. However the Department of Corrections is unlikelyto offer the programme to the appellant because it lacks resources and he isliable for deportation. [40] On the second matter, the Tribunal considered counsel's submission that therewas no rehabilitative intervention in Samoa and that Mr Vailagilala had no assistancesince being in custody. The Tribunal said:27[55] No such programme is available in Samoa.[56](d) There are no facilities in Samoa for rehabilitation of the appellant.25 Section 226(1) of the Act.26 Vailagilala v Minister of Immigration, above n 2.27 Vailagilala v Minister of Immigration, above n 2.[41] Then in the part of the decision where the Tribunal was making its assessmentof whether there were exceptional circumstances of a humanitarian issue, the Tribunalengaged with this issue saying:28[72] The Tribunal notes the submission of the appellant's counsel that thereare no facilities in Samoa for the appellant's rehabilitation.[42] In making its assessment under the "unjust or unduly harsh" limb of the test,the Tribunal weighed the exceptional circumstances of a humanitarian nature it foundto exist, and which included the issue of rehabilitative programmes (as set out above)against the seriousness of the offending. In other words, the Tribunal did consider theissue of rehabilitative treatment under the "unjust or unduly harsh" limb of the test.[43] As to the submission made to the Tribunal that Mr Vailagilala had not hadrehabilitative assistance provided to him, as Mr Niven notes, Mr Woodcock's reportdoes not appear to support that submission. While Mr Woodcock stated thatMr Vailagilala had not participated in the particular programme Saili Matagi, hisreport does not purport to set out the treatment Mr Vailagilala had had, but onlyrecommends this particular programme. The section of Mr Woodcock's report headed"Sources of information" does not refer to information from the Department ofCorrections on what rehabilitation had been either provided or offered toMr Vailagilala. Additionally, the decision refers to Mr Vailagilala's own evidence that,in prison, Mr Vailagilala had taken a variety of courses and that:29 He has also attended classes in Samoan language and culture, which havehelped him to know his background and to grow as a person.[44] For the above reasons, Mr Vailagilala has not established that the Tribunal didnot consider the availability of rehabilitation in determining that it would not be unjustor unduly harsh to deport Mr Vailagilala from New Zealand.28 Vailagilala v Minister of Immigration, above n 2.29 At [22].Alleged insufficient consideration and weight given to availability of rehabilitativeprogrammes[45] In considering whether it would be unjust or unduly harsh to deportMr Vailagilala, the Tribunal balanced his very serious offending against theexceptional circumstances of a humanitarian nature. In this context, the Tribunalconsidered the difficulties in readjusting to society that Mr Vailagilala would haveafter his long prison sentence. The Tribunal said:30[80] The appellant's offending must be weighed against his exceptionalhumanitarian circumstances. As identified above, these are that his difficultreadjustment to society after his long prison sentence will be supported by hisimmediate family in New Zealand (and, in particular, his twin brother)whereas he has limited family support in Samoa.(emphasis added)[46] The Tribunal referred to the remarks of the sentencing Judge as follows:31[33] The fact of the matter is that this was a very serious crime and therewas an element of premeditation. The offenders essentially went out lookingfor [the victim] for the purpose of attacking him, and that is what happened.So far as [the appellant was] concerned, you were evidently the first tocommence the assault, which was the fatal one. Whatever the circumstanceswere when you got into the car, by the time you left it, it seems clear what youhad in mind.[35] [I]t was a nasty, murderous assault and it was three on to one. Itcontinued through and beyond a stage where [the victim] would have beentotally unable to defend himself having been overwhelmed by serious forceused against him.[36] I would characterise the offending as very serious and in my view itjustifies imposition of a minimum term of imprisonment of 15 years beforetaking into account any mitigating features.[38] It is clear that what was to be the fatal assault was commenced by [theappellant] when he tackled [the victim] to the ground, and after that [two co-offenders] joined in. Given my acceptance of the Crown's evidence at the trialthat at least four weapons were used in the assault, I think it likely in thecircumstances that each of you must have used one of the weapons. I do notaccept [counsel's] submission that [the evidence of a forensic witness] at thetrial made it clear that [the appellant] could not have used a knife. Whether or30 Vailagilala v Minister of Immigration, above n 2.31 At [77].not that is the case however, and which of you were armed or to what extent,I do not consider significant. The events would as they quickly unfolded nothave allowed one person to wield all the weapons that were used. Given theevents that were taking place at close quarters, each of you must have beenaware that one or more of you was using a weapon, yet jointly continued inthe assault. The fact that all of you participated in the attack, by any means,contributed to [the victim's] inability to defend himself, even if one of you hadnot been armed. Consequently, in assessing the gravity of the offending, Iwould not distinguish among the three male offenders.[47] The Tribunal then said:32[79] When an appellant's offending is minor in nature, it will be easier toestablish that deportation would be unjust or unduly harsh against anyhumanitarian factors. However, where the appellant's offending isparticularly serious, even strong humanitarian circumstances may not result indeportation being unjust or unduly harsh. In the appellant's case, murder is avery serious crime and his offending was a serious example of its type, whichhe committed within two years of his arrival in New Zealand.[48] This challenge comes down to the weight the Tribunal accorded to part of theevidence. Mr Vailagilala does not make out any error of weight that could amount toan arguable error of law. To do so, Mr Vailagilala would need to point to an error ofsuch significance, extent or nature that it renders the decision legally flawed.33 Thatis not the case here.[49] As to Mr Godinet's reliance on Helu, I accept Mr Niven's submission that it ismisplaced. The discussion in Helu referred to by Mr Godinet, that is the need to makean overall judgment of the circumstances, relates to the public interest test ins 207(1)(b). It was not necessary for the Tribunal to consider the public interest.Section 207(1)(a) was not satisfied.[50] I also accept the submission Mr Niven makes that Mr Vailagilala'scircumstances are entirely different from those of the appellant in Helu who had beenin New Zealand since early childhood. The offending in this case could not be said tobe "home grown" in the sense used by Elias CJ and Glazebrook J in Helu becauseMr Vailagilala grew up in Samoa.3432 Vailagilala v Minister of Immigration, above n 2.33 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 16, at[28] citing Nabou v Minister of Immigration, above n 16.34 At [12], [101] and [212].Threshold for leave: error of law and general or public importance or any otherreason[51] It is not necessary to consider whether the availability of rehabilitation was amandatory consideration for the Tribunal in its assessment of whether it would beunjust or unduly harsh for Mr Vailagilala to be deported from New Zealand. That isbecause the Tribunal did consider the issue. In doing so, it applied the correct statutorytest. Therefore, there is no seriously arguable error of law.[52] Regarding the alleged failure to have "proper regard" to the availability ofrehabilitation, that is a matter of weight, as discussed above, which does not amountto an error of law.[53] As the above two grounds raised by Mr Vailagilala have little or no prospectof success, the issues are of limited general or public importance.[54] Mr Godinet also argues that the threshold for leave is met becauseMr Vailagilala has not yet received and is not likely to receive rehabilitation treatment.Mr Godinet submits the consequences are grave and this is an error of law that oughtto be submitted to this Court for decision. He says the question of law "for any otherreason" in s 245(2) involves the issue of the Department of Corrections or PublicPrison Service of New Zealand not providing rehabilitative intervention treatmentwhile Mr Vailagilala is in prison.[55] This claim does not amount to an error of law in respect of the decision soughtto be appealed. Any alleged error must relate to the Tribunal's consideration of anissue not whether rehabilitation is available or not.[56] Any reframing of the issue to meet the legal test would result in an allegationthat there was a failure to consider the availability of rehabilitation. I have alreadydetermined that the Tribunal did not err in this regard. It did consider this issue.Further, I accept Mr Niven's submission that even if the Tribunal had made such anerror it would not have been likely to alter the required weighing exercise havingregard to the seriousness of Mr Vailagilala's offending.[57] Finally, this alleged error does not meet the threshold of "any other reason" ins 245(2) in respect of individual injustice. As was said by Kos J in Taafi v Minister ofImmigration:35 it would only be in exceptional circumstances, involving individualinjustice to such an extent that the Court simply could not countenance thefirst instance decision standing, that this alternative requirement will be met.[58] For the above reasons, the proposed appeal does not raise any question of lawof general or public importance or which for any other reason ought to be submittedto the High Court.Result[59] The application for leave to appeal to this Court on questions of law isdismissed.Costs[60] The proceeding has previously been categorised as costs category 2. TheMinister seeks costs. If the parties can agree costs, a joint memorandum is to be filedwithin 20 working days of the date of this judgment. If costs cannot be agreed, theMinister's memorandum is to be filed and served within five working days of the dateof the joint memorandum. Mr Vailagilala is to file and serve his memorandum withinfive working days of service of the Minister's memorandum. Memoranda should notexceed four pages. I will determine costs on the papers.___________________________________Gordon J35 Taafi v Minister of Immigration, above n 18, at [19].