JW v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2022] NZCA 286

JW v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2022] NZCA 286 [1 July 2022]NOTE: THE TRIBUNAL ORDER PROHIBITING PUBLICATION OF THENAME AND IDENTIFYING PARTICULARS OF THE APPLICANT, HISCURRENT AND FORMER PARTNERS AND HIS FAMILY MEMBERSREMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA28/2022[2022] NZCA 286BETWEEN JWApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentCourt: Cooper P and Brown JCounsel: J H Cottrell and D L Calvert for ApplicantK I S Naik-Leong and A M Piaggi for RespondentJudgment:(On the papers)1 July 2022 at 10.30 amJUDGMENT OF THE COURTA The application for leave to appeal a question of law to the High Court isdeclined.B The application for leave to commence judicial review proceedings in theHigh Court is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The applicant (JW) became liable for deportation under s 161(1)(a)(iii) of theImmigration Act 2009 (the Act) as a consequence of certain convictions.His humanitarian appeal to the Immigration and Protection Tribunal (the Tribunal)under s 207 of the Act was declined on the grounds that there were no exceptionalcircumstances of a humanitarian nature that would make it unjust or unduly harsh forJW to be deported (the decision).1[2] His applications to the High Court for leave to appeal under s 245 of the Actand for leave to bring judicial review proceedings under s 249 were dismissed.2He now applies to this Court for leave to appeal to the High Court againstthe Tribunal's decision3 and for leave to bring judicial review proceedings inthe High Court in respect of the Tribunal's decision.4 The respondent opposesthe application.The form of the applicant's submissions[3] Rule 23(4) of the Court of Appeal (Civil) Rules 2005 (Rules) specifies that thewritten submissions on a contested application for leave must be contained in adocument of not more than ten pages using 1.5 line spacing. JW's written submissionsare four times the permitted maximum. We recognise however that if separateapplications had been filed, then JW would have been entitled to file submissionstotalling 20 pages.[4] Furthermore the size of the print in the submissions is less than the minimumof 12 point specified in r 9(2). Indeed substantial portions of the submissions appearto be in type of no more than 8 point. If the document had complied with the r 9(2)requirement we apprehend that it would have been in excess of at least 50 pages, whichis twice the permitted length of submissions on substantive appeals.51 JW (India) v Minister of Immigration [2020] NZIPT 600641.2 JW v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 3489.3 Pursuant to s 245(1) of the Immigration Act 2009.4 Pursuant to s 249(3).5 Court of Appeal (Civil) Rules 2005, r 40E(3)(a).[5] This substantial non-compliance echoes the course adopted by JW inthe High Court. Having observed that it is, or should be, trite that an application forleave should not involve an effective rehearsal of the substantive appeal orthe substantive application for review,6 Ellis J stated:[32] And yet, in this case — which is by no means an exception —the Court is faced with written submissions, numbering over 50 pages, thatappear to invite and require a detailed interrogation of all aspects of theTribunal's decision, including the facts and the evidence. That seems to meto be quite at odds with the process intended by Parliament. Indeed, it istempting to suggest at the outset that if applicants for leave are unable toarticulate succinctly where and how the Tribunal has fallen into legal orprocedural error, then they are unlikely to succeed. While requiring the Courtto consider a pepper pot of alleged wrongs at the leave stage may have theeffect of buying applicants more time, it may not, in the end, prove to be themost effective form of advocacy.Those observations, which we endorse, clearly failed to register with those whoprepared JW's submissions for this Court.[6] Those submissions should not have been accepted in that form. If this Courtwere to entertain submissions on leave applications of 50 plus pages, the work ofthe Court would grind to a halt. Although in an inevitably lengthy judgment the Judgeengaged with the detail of the submissions in the High Court, we do not intend todo so. It should be axiomatic that lawyers comply with their clear obligations underthe Rules.Factual background[7] JW, who was born in India, arrived in New Zealand in February 2013. He wasgranted New Zealand residency in February 2016 on the basis of his relationship withhis (then) wife. In 2018 he was convicted on seven counts of male assaults female andone count of assault with a blunt instrument. He was sentenced to ten months'home detention and 140 hours' community work and was ordered to complete an angermanagement and/or violence intervention programme. He was served witha deportation liability notice on 23 September 2019.6 At [31].[8] He appealed his deportation liability on humanitarian grounds under s 207 ofthe Act, which states:(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.[9] In its decision of 6 November 2020, in which it concluded that there were nosuch exceptional circumstances, the Tribunal considered JW's settlement inNew Zealand, his relationship with his current partner, his current partner's situation,JW's mental health, his prospects in India and his relationship with his parents.[10] Having summarised and somewhat reformulated the issues raised by JW in hisapplications for leave in the High Court, the Judge concluded that the proposed appealdid not arguably disclose a legal error and, there being a clear evidential basis for theimpugned findings of fact, it was not seriously arguable that they were wrong.Neither category of alleged error raised matters of general or public importance, orconstituted some other reason for granting leave.7Grounds of appeal and judicial review[11] In summary, JW's application in this Court contends that the Tribunal'sdecision was erroneous in law in the follow respects:(a) The Tribunal misinterpreted s 207(1)(a) of the Act by merging the twodiscrete, albeit related, inquiries which comprise the statutory test ofexceptional circumstances.(b) As a result, in determining that JW did not have exceptionalcircumstances of a humanitarian nature the Tribunal failed to take intoaccount a number of relevant considerations addressed in the evidence.7 At [61]–[62].(c) The Tribunal misapplied s 207(1)(a) of the Act by unfairly balancingthe considerations of whether it would be unjust or unduly harsh todeport the applicant against the consequences for him of deportation.[12] The grounds in his application for leave to seek judicial review ofthe Tribunal's decision are:(a) the Tribunal's decision was unreasonable due to its reliance on its Sikhinterpreter, who failed to competently interpret from English to Punjabiand vice versa; and(b) the consequence of the Tribunal's reliance on its Sikh interpreter wasthat the Tribunal misunderstood cultural differences and failed to takeinto account relevant considerations.The application for leave to appeal[13] In Ye v Minister of Immigration, the majority of the Supreme Court recognisedthat there were three ingredients in s 47(3) of the Immigration Act 1987, which wasthe predecessor to s 207(1)(a) of the Act.8 In her minority judgment, Elias CJ did notconsider that the provision described a sequenced tripartite test.9[14] JW contends that, despite engaging in an ostensibly sequential analysis of thethree ingredients, the Tribunal effectively applied the approach of Elias CJ,determining that JW's humanitarian circumstances were not exceptional because theconsequences of deportation for him would not make it unjust or unduly harsh for himto be deported from New Zealand. Hence it was submitted:By merging what are essentially two discrete, albeit related, inquiries,the Tribunal incorrectly distorted the proper statutory test creating a morerestrictive dimension than there is.(Footnote omitted.)8 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34] per Blanchard, Tipping,McGrath and Anderson JJ.9 At [7].[15] However, as Ellis J recognised in the High Court,10 the Tribunal expresslyreferred to the Ye tripartite approach, addressed in detail the circumstances said by JWto be exceptional, acknowledged that because of those circumstances deportationwould cause him (and others) disappointment and emotional upset, but determinedthat those consequences did not justify a finding that he had exceptional circumstancesof a humanitarian nature. In our view there was no error by the Tribunal in its analysisof those considerations.[16] JW further criticises the Tribunal for failing to complete its inquiry into hisclaimed circumstances and incorrectly focusing on the second part of the statutory test,which involves an inquiry as to whether the likely outcomes which would result froma return to his home country would make deportation unjust or unduly harsh. This issaid to involve a misinterpretation of the statutory test. The respondent's rejoinder isthat, as explained in Guo v Minister of Immigration, the Tribunal is required to assessthe reasons why a person is liable for deportation and to weigh those considerationsagainst the consequences for the appellant of deportation.11[17] As the respondent correctly observed, before the Tribunal reaches the unjust orunduly harsh element, it must already have considered what the consequences ofdeportation might be. In this case the Tribunal determined that those consequencesdid not justify a finding that JW had exceptional circumstances of ahumanitarian nature. The Tribunal's findings in the first stage of the test meant it wasnot required to move on to the separate unjust or unduly harsh element.12 We agreewith the respondent that the Tribunal's interpretation of the test was orthodox andsupported by the language in the statute and the guidance provided by case law.[18] As a consequence of the contended errors by the Tribunal, it was submitted forJW that the Tribunal failed to take into account a number of relevant considerationspresented in the evidence, including:10 At [36].11 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].12 At [96]–[98].(a) JW's post-traumatic stress disorder;(b) the mental health issues of JW's father;(c) JW's partner's fear of returning to India;(d) the mental health support in India; and(e) JW's father's depression.[19] The respondent submitted that each of these circumstances was considered bythe Tribunal and, contrary to the submission for JW, the Tribunal actively engagedwith the submissions and evidence which JW presented. Plainly the Tribunal was notrequired in its decision to traverse every aspect of the evidence in detail. In any event,we agree with the respondent's submission that the alleged errors amount to no morethan a misapplication of existing legal principle to the particular facts of the case,which does not qualify as a question of law warranting the grant of leave.[20] Although not foreshadowed in the application for leave, JW's submissionsincluded as "Ground 2 — Mistake of Fact" an assertion that the Tribunal's decisionwas fundamentally flawed as a result of being based on numerous mistakes of fact.The asserted mistakes of fact were said to be the product of alleged inconsistenciesand errors in translation by the Tribunal's interpreter.[21] The respondent's answer to this contention was two-fold. First, while there aredifferences in the phrasing and at times the language used by the interpreter at theTribunal hearing, compared to the translation produced by JW's independenttranslator, those differences do not amount to a qualifying error of law for the reasonsexplained by the Supreme Court in Abdula v R.13 Secondly, JW has not overcome the"triple hurdle" test discussed in Taafi v Minister of Immigration so as to establish thatthe Tribunal made mistakes of fact that are capable of constituting a relevant errorof law.14 In our view the respondent's submission is plainly correct.13 Abdula v R [2011] NZSC 130, [2012] 1 NZLR 534 at [40]–[41].14 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].The application for leave to judicially review the Tribunal decision[22] Although the grounds for the proposed review as expressed in the applicationfor leave were reasonably confined,15 in JW's written submissions they expanded intothree distinct grounds for judicial review:(a) irrelevant/relevant considerations;(b) mistake of fact (procedural unfairness); and(c) irrationality.[23] The first and second grounds repeated the earlier submissions concerning thecompetence of the interpreter while the first also attacked the Tribunal's conclusionson certain issues of fact. The third asserted that the Tribunal's decision was irrationalin that it was so unreasonable that no reasonable person, acting reasonably, could havemade its findings on three keys matters concerning JW, his father and his partner.It was submitted that the impact of these three grounds extended beyond JW'sindividual case and highlighted a flawed decision-making process, a breach of theright to present a fair and reasonable case, and an undermining of the public'sconfidence in the judicial system.[24] The respondent submits that the claims generally amount to dissatisfactionwith the Tribunal's factual conclusions, which is not a ground for review. The decisionwas fully reasoned, followed settled law and is uncontroversial. To the extent that theproposed review challenge concerns the translation complaint, the respondent submits,correctly, that the alleged error overlaps with the ground for leave to appeal and couldtherefore be dealt with on appeal. The respondent adopts its previous submission inthat context.[25] Having reviewed JW's submissions, we are not satisfied that there is anyproper basis for the contentions of procedural unfairness or that the Tribunal acted inan unreasonable or irrational manner.15 See [12] above.[26] In any event none of the matters which JW has raised can fairly be viewed asof general or public importance or as constituting some other reason why his proposedappeal or application for judicial review should be submitted to the High Court forsubstantive consideration.16Result[27] The application for leave to appeal a question of law to the High Court isdeclined.[28] The application for leave to commence judicial review proceedings in theHigh Court is declined.Solicitors:Cottrell Law Limited, Wellington for ApplicantCrown Law Office, Wellington for Respondent16 Pursuant to ss 245(3) and 249(6) of the Immigration Act 2009.