NGUYEN V MINISTER OF IMMIGRATION HC AK CIV-2012-404-1858

NGUYEN V MINISTER OF IMMIGRATION HC AK CIV-2012-404-1858 [8 October 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-1858[2012] NZHC 2608UNDER the Immigration Act 2009IN THE MATTER OF an application for leave to appeal pursuantto s 245 Immigration Act 2009BETWEEN HUY QUOC NGUYENApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: 8 August 2012Appearances: H R Laubscher for ApplicantA R Longdill for RespondentJudgment: 8 October 2012JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 8 October 2012 at 4:30 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors:Jesse & Associates, Auckland: jesse.associates@xtra.co.nzMeredith Connell, Crown Solicitor, Auckland: anna.longdill@meredithconnell.co.nzCounsel:H R Laubscher, Auckland: hrlaubscher@gmail.com[1] The Applicant seeks leave to appeal to the High Court from a decision of theImmigration and Protection Tribunal ("Tribunal") dated 8 March 2012.1 The application for leave is opposed.[2] On 28 July 2010, the Minister of Immigration ("Minister") made an order forthe Applicant's deportation ("order"). There is no dispute that the Minister hadpower to make the order. The Applicant had been convicted of several drug offences and the term of imprisonment imposed on the Applicant in respect of that offending made the Applicant susceptible to such an order.[3] The Applicant appealed to the Tribunal for an order quashing the (deportation) order.2 The Applicant's appeal was lodged prior to the repeal of theImmigration Act 1987 ("1987 Act"). The Tribunal had power to quash a deportation order in the circumstances set out in s 105(1) of the 1987 Act. The Tribunal declined to quash the order and, as I have said, the Applicant now seeks leave to appeal that decision.[4] The circumstances in which the Court may grant leave to appeal a decision of the Tribunal are set out in s 245 of the Immigration Act 2009. That provision reads as follows: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.(2) ...(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 by1 Nguyen v Minister of Immigration [2012] NZIPT 500082.2 Immigration Act 1987, s 104(1).reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision....[5] Accordingly, an applicant for leave must first establish that their proposed appeal raises a question of law. If that is established, the Court must then have regard to whether the question of law 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.Grounds of application[6] The Applicant's application for leave lists several errors of law which theTribunal is said to have made. In his submissions, counsel for the Applicant reduced these to the following:(a) the decision was wrong in law as the Tribunal did not consider theinterests of the Applicant's family in the correct manner;(b) the Tribunal failed to apply art 17 of the International Covenant onCivil and Political Rights ("ICCPR") correctly;(c) the Tribunal failed to assess the Applicant's risk of re-offending in the correct manner; and(d) the Tribunal failed to consider the public interest in family unity in the correct manner.[7] In considering the Applicant's appeal, the Tribunal was required to apply s 105 of the 1987 Act.[8] That provision reads as follows:105 Tribunal may quash deportation order(1) On an appeal under section 104 of this Act, the Tribunal may, by order, quash the deportation order if it is satisfied that it would beunjust or unduly harsh to deport the appellant from New Zealand, and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand.(1A) ...(2) In deciding whether or not it would be unjust or unduly harsh to deport the appellant from New Zealand, the Tribunal shall have regard to the following matters:(a) The appellant's age:(b) The length of the period 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 nature of the offence or offences of which the appellant has been convicted and from which the liability for deportation arose:(f) The nature of any other offences of which the appellant has been convicted:(g) The interests of the appellant's family:(h) Such other matters as the Tribunal considers relevant.[9] Because it is material to what follows, I note that s 105(1) allows the Tribunal to quash a deportation order if satisfied that it would be unjust or unduly harsh to deport and if satisfied that it would not be contrary to the public interest to allow the appellant to remain in New Zealand.[10] In considering the first limb of s 105(1) of the 1987 Act, namely whether it would be unjust or unduly harsh to deport, s 105(2) of the 1987 Act requires the Tribunal to have regard to a range of matters. Of those matters, ss 105(2)(c) and (g) are relevant in this case.[11] In its determination of the appeal, the Tribunal reviewed each of the matters listed in s 105(2). Having considered all of those matters, the Tribunal decided that it would not be unjust or unduly harsh to deport the Applicant.[12] The Tribunal then went on to consider the second limb of s 105(1), namely whether it would not be contrary to the public interest to allow the Applicant toremain in New Zealand. This was unnecessary, given the conclusion that the Tribunal had reached on the first limb of s 105(1). In any event, the Tribunal concluded that it was not satisfied that it would not be contrary to the public interest for the Applicant to remain in New Zealand.[13] I turn now to each of the matters put in issue by the Applicant.First and second errors of law – the Tribunal did not consider the interests of theApplicant's family in the correct manner and the Tribunal failed to apply art 17 of the ICCPR correctly[14] The Tribunal was required to have regard to the interests of the Applicant'sfamily in the context of the first limb of s 105(1).3[15] In its decision, the Tribunal addressed the interests of the Applicant's familyat some length. Amongst other things, the Tribunal referred to the consequences forthe Applicant's parents if he were to be deported. There is no doubt that the Tribunal recognised that the Applicant's deportation would be a considerable blow to his elderly and immigrant parents, to whom he has provided considerable support. The error that the Tribunal is said to have made is at [45] of its decision, where the Tribunal stated that there was no reason to doubt that the Applicant's sister and her children would provide emotional and physical support to the Applicant's parents ifthe Applicant were deported.[16] Similarly, later in the decision, the Tribunal said that the hardship to theApplicant's parents would be ameliorated by the presence of the Applicant's sister and her children and that the Applicant's sister had a good record of supporting herparents and could be expected to continue to do so in the future.4[17] In so far as concerns art 17 of the ICCPR, the Tribunal said as follows:[52] The potential separation of the appellant from his family raises significant human rights issues. Article 17 of the International Covenant onCivil and Political Rights (ICCPR) provides that "no-one shall be subjected to arbitrary or unlawful interference with his...family". This right to family3 Immigration Act 1987, s 105(2)(g).4 Nguyen v Minister of Immigration [2012] NZIPT 500082 at [53].life though, is not absolute. Whether the rights of the appellant and hisfamily would be breached depends on whether the appellant's deportation isreasonable, that is proportionate and necessary in the circumstances: see theUnited Nations' Human Rights Committee General Comment 16 (8 April 1988) and the discussion in Toonen v Australia (Communication No 488/192 UN Doc CCPR/C/50/D/488/1992, 4 April 1994) and Madafferi v Australia(Communication No 1011/2001, UN Doc CCPR/C/81/D/1011/2001, 26 August 2004, at 9.8). See also Nofoaiga v Minister of Immigration DRT Decision No 11/2009 (6 April 2009), [75]-[79].[18] In his written submissions, counsel for the Applicant did not particularise his contentions regarding the Tribunal's treatment of art 17. Counsel did, however, submit that it was not open to the Tribunal to determine that the Applicant's sisterand her children would provide emotional and physical support. Counsel for the Applicant submitted that there was no evidence to support that finding.[19] Counsel for the Respondent submitted that there was ample evidence tosupport the Tribunal's statement that there was no reason to doubt that theApplicant's sister would support her parents. Counsel referred me to evidence thatthe Applicant's sister had visited her parents once a week whilst the Applicant was inprison, that she lives only 10 minutes drive from her parents and the fact that theApplicant's parents were accompanied to the hearing before the Tribunal by theirgranddaughter (the child of the Applicant's sister).[20] I should add that counsel for the Respondent took issue with the manner in which counsel for the Applicant put this issue in his submissions. Counsel for the Respondent was under the impression that there was to be no submission that the evidence before the Tribunal was insufficient. Counsel for the Respondent informed me that, on that basis, material that was relevant to the issue had been deliberately excluded from the bundle filed for the appeal. Had I concluded that there was meritin this aspect of the Applicant's application I would have allowed counsel for the Respondent an opportunity to file the evidence on which she wished to rely.[21] However, I do not consider that this point raises any error of law. For the reasons given by counsel for the Respondent, I am satisfied that there was sufficientevidence to support the Tribunal's finding. I add that there is no doubt that theApplicant's deportation will be a terrible blow to his elderly parents, particularlygiven the evidence that the Applicant now has his life "back on track". The Tribunalclearly recognised these matters and was obviously sympathetic to the Applicant'sparents and the circumstances in which they find themselves. The fact that theApplicant's sister may provide some support in his absence was only one factor inthe Tribunal's consideration of the interests of the Applicant's family, which in turn was only one of the variety of matters that fell to be considered under s 105(2).Third error of law – Applicant's risk of re-offending[22] Section 105(2)(c) of the 1987 Act requires the Tribunal to have regard to theApplicant's personal and domestic circumstances.[23] In his submissions in support of the application for leave to appeal, counselfor the Applicant contended that the Tribunal had failed to consider the Applicant'srisk of re-offending in the context of s 105(2)(c).[24] The Tribunal considered matters relating to the Applicant's risk of re- offending in the context of its assessment of the second limb of s 105(1).[25] Counsel for the Respondent submitted that an appellant's risk of re-offending is properly considered under the second limb of s 105(1), and that it is not a matter to be considered within s 105(2).[26] I accept that submission. In my view the risk of re-offending is a matter which arises in the context of the public interest, and only requires consideration if the Tribunal has reached the view that it would not be unjust or unduly harsh to deport the Applicant.[27] This approach is in keeping with decisions of this Court. I note particularly the comments of Toogood J in Helm v Immigration and Protection Tribunal.55 Helm v Immigration and Protection Tribunal [2012] 1270 at [31] and [45].Fourth error of law – failure to consider the public interest and family unity in the correct manner[28] For the same reason, it is unnecessary for me to consider counsel for theApplicant's submissions on the fourth alleged error.[29] The Tribunal considered the public interest that exists generally in family unity in the course of considering the second limb of s 105(1). As counsel for the Respondent submitted, this consideration was unnecessary given the Tribunal'sdetermination that it would not be unjust or unduly harsh to deport the Applicant.[30] For the reasons given, I am not satisfied that any question of law arises, let alone 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.Result[31] I dismiss this application for leave to appeal.[32] The parties are to confer on the matter of costs and may file brief submissions if they are unable to agree...................................................................M Peters J