JE (INDIA) v IMMIGRATION AND PROTECTION TRIBUNAL [2021] NZCA 307

JE (INDIA) v IMMIGRATION AND PROTECTION TRIBUNAL [2021] NZCA 307NOTE: THE TRIBUNAL ORDER PROHIBITING PUBLICATION OF THEAPPLICANT'S NAME AND IDENTIFYING PARTICULARS REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA91/2021 [2021] NZCA 307BETWEEN JE (INDIA)ApplicantAND IMMIGRATION AND PROTECTION TRIBUNALFirst Respondent CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT Second RespondentCA92/2021BETWEEN JE (INDIA)ApplicantAND CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENTRespondentCourt: Brown and Collins JJCounsel: B Castelino for Applicant K Laurenson and A P Lawson for Immigration and Protection Tribunal I G M Clarke and E J Cameron for Chief ExecutiveJudgment:(On the papers)9 July 2021 at 3.30 pmJUDGMENT OF THE COURTA The application for leave to appeal a question of law to the High Court is declined.B The application for leave to commence judicial review proceedings in the High Court is declined.C Counsel for JE must advise the Court within 10 working days whether or not his client is in receipt of legal aid or if there is any other reason why costs should not follow the event.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Two applications filed by JE in this Court require determination:(a) An application under s 245(1) of the Immigration Act 2009 (the Act) in which JE seeks leave to appeal to the High Court on a question of law from a decision of the Immigration and Protection Tribunal (the Tribunal). 1 The High Court has previously dismissed JE's application for leave to appeal. 2(b) An application under s 249(3) of the Act in which JE seeks leave to judicially review the Tribunal's decision. In its judgment the High Court also refused to grant JE leave to judicially review the Tribunal's decision.1 JE (India) [2020] NZIPT 504867 [Tribunal decision].2 JE (India) v Immigration and Protection Tribunal [2021] NZHC 91 [High Court judgment].Background3[2] JE was born in India in 1994. She married her husband in that country in 2016. At the time, JE's husband held a one-year post-study work visa in New Zealand. JE arrived in New Zealand in November 2016 on a visitor visa. In May 2017, she was issued with a two-year work visa and she commenced working in restaurants and for an orchard management company.[3] During this period, JE's marriage rapidly deteriorated. Her husband was abusive towards her and coerced JE into having an abortion. In September 2018, JE's husband was convicted of assaulting her. He was sentenced to nine months' supervision. She separated from him in February 2019. In March 2019, JE's husband was served with a deportation liability notice.[4] Following the expiration of her work visa, JE was issued with a visitor visa that was valid until November 2019.[5] In September 2019, JE applied for a student visa. She was granted an interim visa until 13 December 2019 pending the determination of her application. When JE's husband learned that JE had applied for a student visa, he placed pressure on her to withdraw her application believing her continued presence in New Zealand would jeopardise his chances of remaining in the country. JE withdrew her student visa application in November 2019. She was then notified that her interim visa would expire on 13 December 2019 and that, if she remained in New Zealand after that date, she would be liable for deportation.[6] On 19 December 2019, JE filed with the Tribunal an appeal on humanitarian grounds under s 206 of the Act. That appeal was dismissed by the Tribunal on 18 May 2020.[7] In February 2020, JE obtained a temporary protection order from the Family Court against her husband.3 Due to the limited evidence filed in this Court, the background facts are taken from the Tribunal decision.Tribunal decision[8] The test for a humanitarian appeal is provided in s 207 of the Act: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[9] The Tribunal recognised the test requires an applicant to establish exceptional circumstances of a humanitarian nature which, as the Supreme Court explained in Ye v Minister of Immigration, requires demonstration of matters that "must be well outside the normal run of circumstances" and be "truly an exception rather than the rule". 4 It is a very high threshold.[10] It was central to JE's case that she should be allowed to remain in New Zealand because she was a victim of domestic violence. The Tribunal carefully evaluated all of the evidence that demonstrated JE was the victim of domestic violence, but it was not satisfied her circumstances met the high threshold of exceptional circumstances of a humanitarian nature set by s 207(1) of the Act.[11] The Tribunal referred to the immigration instructions for the victims of family violence visa category (Victims of Family Violence Visa Instructions), which permits the issuance of visas for victims of family violence where the perpetrator is a New Zealand citizen or resident. Because JE's husband did not meet that criteria, the Tribunal noted that JE would not be eligible for a family violence visa had she applied for one.4 Tribunal decision, above n 1, at [13], citing Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].[12] The Tribunal also recorded that JE would be supported by her retired parents upon her return to India and that she also enjoyed support from two sisters who live in Australia.Applications for leave to appeal/review the Tribunal's decision[13] Following the Tribunal decision, JE applied to the High Court for leave to appeal and leave to judicially review the Tribunal decision.[14] Section 245(1) of the Act permits appeals to the High Court on a point of law "with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal)". In determining whether to grant leave to appeal under s 245, the Court "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". 5[15] Under s 249(3) of the Act, leave of the High Court is required before commencing judicial review proceedings in relation to a decision of the Tribunal. If the High Court refuses leave, the Court of Appeal may grant leave. Section 249(6) sets out mandatory considerations for the Court considering granting leave:(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.High Court decision[16] Campbell J dismissed both JE's applications.6 In terms of the application for leave to appeal, the Judge noted that the applicant "simply disagrees with the Tribunal's conclusion that her particular circumstances do not meet the (correctly5 Immigration Act 2009, s 245(3).6 High Court judgment, above n 2.stated) statutory test". 7 The intended appeal did not give rise to a question of law as required by the Act.[17] For the proposed judicial review, JE submitted that the Tribunal erred in law by:(a) mistakenly requiring JE to prove her humanitarian circumstances were of an exceptional nature; 8(b) failing to consider JE's "legitimate expectation" to be treated fairly and uniformly as a victim of domestic violence; 9 and(c) not considering exercising its discretion to grant JE a temporary entry class visa when declining the appeal. 10[18] The Judge concluded that none of these errors were seriously arguable and therefore declined to grant leave.Present leave applications[19] There is a high degree of overlap between the two applications before us and the way in which JE's applications were presented in the High Court. The proposed questions of law/grounds for review may be distilled to four questions:(a) Did the Tribunal correctly apply the test of "exceptional circumstances of a humanitarian nature" in s 207(1) of the Act?(b) Did the Tribunal err by not placing sufficient weight on JE having been a victim of domestic violence?(c) Did the Tribunal err by not considering whether the Victims of Family Violence Visa Instructions are ultra vires?7 At [40].8 At [45].9 At [47].10 At [49].(d) Did the Tribunal err when it found JE would have support from her parents in India?[20] The tests for granting leave to appeal and to judicially review a decision of the Tribunal reflects a deliberate decision by Parliament to restrict challenges to decisions of the Tribunal. Accordingly, any proposed question of law must be both bona fide and capable of serious argument. The question must also be one which ought to be submitted to the High Court by reason of its general or public importance. There is a further hurdle for those seeking leave to judicially review a decision of the Tribunal. An application for leave to commence judicial review proceedings is unlikely to succeed if the proposed challenge could adequately be dealt with by an appeal. 11The exceptional circumstances test[21] JE submits that it was an error in law to apply the high threshold test found inMinister of Immigration v Jooste to "simplify and justify" the hardship experienced by victims of domestic violence. 12 In this submission JE's lack of fault is also emphasised. The respondent interprets this as a submission that the Tribunal should have applied a lower test because JE "technically became unlawful in the country because she is a victim" of domestic violence.[22] Domestic violence is a factor the Tribunal may take into account in deciding whether or not the threshold set by s 207(1)(a) of the Act has been met. The first proposed ground of appeal/review is, however, not capable of serious argument because the test prescribed by Parliament in s 207(1) of the Act does not vary depending on applicants' circumstances. The Tribunal correctly identified the relevant test in s 207(1) and applied that test, in light of the Supreme Court's interpretation inYe v Minister of Immigration, when considering JE's circumstances. 13 It is not arguable that the Tribunal erred on this point.11 See SK v Immigration and Protection Tribunal [2015] NZCA 26, [2015] NZAR 335 at [13], citingK v Immigration and Protection Tribunal [2014] NZCA 585 at [2].12 See Minister of Immigration v Jooste [2014] NZHC 2882 at [23]–[24].13 Tribunal decision, above n 1, at [13], citing Ye v Minister of Immigration, above n 4, at [34].[23] Furthermore, the Tribunal correctly noted JE became liable for deportation because she remained in New Zealand after the expiration of her interim visa.14The fact she was a victim of domestic violence was, in itself, not the cause of her being liable for deportation.Weight that should have been given to domestic violence[24] The Tribunal carefully weighed the evidence of JE's domestic violence and, in particular, her violent marriage, the physical, mental and emotional abuse she endured, her coerced abortion, her husband's threats and efforts to persuade her to leave New Zealand, his conviction for assault and the fact JE obtained a temporary protection order against her husband. The Tribunal also assessed the pain and trauma JE has suffered and the stigma and prejudice she may endure in India if others learn of her experiences in New Zealand.[25] The Tribunal was satisfied that deportation would cause JE "disappointment and emotional upset". 15 However, after carefully weighing all of JE's circumstances, and in particular the domestic violence she has suffered, the Tribunal concluded her circumstances did not pass the high threshold of "exceptional circumstances of a humanitarian nature". That decision was not based upon any error of law, let alone one that is seriously arguable. Nor does it give rise to a ground for judicial review that ought to be submitted to the High Court. We agree with the High Court that the applicant simply disagrees with the Tribunal's conclusions based on her particular factual circumstances.Victims of Family Violence Visa Instructions[26] JE contends the Tribunal erred in the way it considered the Victims of Family Violence Visa Instructions and/or in not assessing the vires of those instructions.14 At [8].15 At [24].[27] This proposed ground of appeal/judicial review can be dealt with succinctly:(a) The policy instruction applies only to cases where the perpetrator of the violence is a New Zealand citizen or resident. The policy instruction did not apply in JE's circumstances.(b) The Tribunal does not have the power to determine whether or not the policy instruction was ultra vires. JE has commenced judicial review proceedings in the High Court challenging the legality of those instructions. That is the appropriate forum for this issue.JE's family support[28] JE says the Tribunal made a serious error of fact when it concluded she would have the benefit of material support in India.[29] There was information before the Tribunal that supported this conclusion. The evidence before the Tribunal was that JE's parents were "very supportive of her well-being". JE's sisters in Australia both wrote letters which stated they were willing to provide support to JE.[30] Regardless, the alleged error falls well short of being an error of law or ground of judicial review that ought to be submitted to the High Court by reason of its general or public importance or for any other reason.Result[31] The application for leave to appeal a question of law to the High Court is declined.[32] The application for leave to commence judicial review proceedings in the High Court is declined.[33] Counsel for JE must advise the Court within 10 working days whether or not his client is in receipt of legal aid or if there is any other reason why costs should not follow the event.Solicitors:CastleFinn Law, Auckland for ApplicantCrown Law Office, Wellington for Respondents