K (CA501/2016) v MINISTER OF IMMIGRATION [2016] NZCA 569

K (CA501/2016) v MINISTER OF IMMIGRATION [2016] NZCA 569 [1 December 2016]NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMESOR IDENTIFYING PARTICULARS OF THE PARTIES AND THECHILDREN REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA501/2016[2016] NZCA 569BETWEEN K (CA501/2016)ApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: 28 November 2016Court: Harrison, French and Cooper JJCounsel: A Schaaf for ApplicantC P Paterson for RespondentJudgment: 1 December 2016 at 11.30 amJUDGMENT OF THE COURTA The application for leave to appeal to the High Court is declined.B The applicant must pay the respondent costs on the application on a band A basis together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] K is a Fijian citizen who holds a New Zealand residence permit. He seeks leave to appeal to the High Court against a decision of the Immigration and Protection Tribunal (the Tribunal) declining his appeal against a deportation notice.1The deportation notice was issued by the Minister of Immigration in 2014 as a resultof K's convictions in 2013 for various offences against his former partner and herchildren, including sexual offending and violence.2[2] K's case in the Tribunal was brought on humanitarian grounds pursuant tos 206 of the Immigration Act 2009 (the Act). Section 207 states:(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.[3] In its decision the Tribunal accepted there were exceptional humanitarian circumstances, namely the fact deportation would result in K being separated from immediate family living in New Zealand and that he was likely to be ostracised by extended family living in Fiji because of a previous sexual relationship with an aunt.3 However, the Tribunal did not consider it would be unjust or unduly harsh to deport him when the gravity of his offending was weighed against those exceptional humanitarian circumstances.4 Accordingly, it declined his appeal.[4] Under s 245 of the Act an appeal against the decision of the Tribunal may only be brought with leave of the High Court or of the Court of Appeal if the1 [K] v Minister of Immigration [2015] NZIPT 600133.2 K was convicted of indecent assault, two counts of assault with a weapon, three counts of male assaults female, and two counts of doing an indecent act with a girl aged 12–16.3 [K] v Minister of Immigration, above n 1, at [86].4 At [113].High Court refuses leave. Justice Moore in the High Court at Auckland refused leave5 and accordingly K has now applied to this Court.[5] In order to obtain leave K must satisfy us that the Tribunal has made an error that amounts to a seriously arguable question of law and that the question of law is of general or public importance or for some other reason ought to be determined by the High Court.6[6] In support of the application counsel for K, Ms Schaaf, advances two proposed grounds of appeal. The first is:(1) Did the Tribunal correctly state and apply the test under section207(1) of the Immigration Act 2009 whether it would be "unjust or unduly harsh for the appellant to be deported from New Zealand"and in particular:(i) When it did not consider the mitigating factors in theappellant's offending when assessing whether it would be "unjust or unduly harsh for the appellant to be deported from New Zealand"?(ii) When it did not consider the nature of the appellant'soffending and where his offending fitted within the spectrum of such offending when it considered whether it would be"unjust or unduly harsh for the appellant to be deported from New Zealand"? and(iii) When it focused on the gravity of the offending weighed against the exceptional humanitarian circumstances, and did not consider other relevant matters such as the societal attitudes towards the appellant if returned to his home country?[7] In our view this question does not satisfy the test for granting leave. We agree with Moore J that it is not seriously arguable the Tribunal was required tospecifically identify where an appellant's offending sits on the spectrum of offendingof the type in question.7 The Tribunal is not a sentencing court. It was sufficient that it considered the sentencing notes of the sentencing Judge and the gravity of the5 EG (Fiji) v Minister of Immigration [2016] NZHC 2071.6 Immigration Act 2009, s 245(3); Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] NZAR 662 at [8]; and Minister of Immigration v Jooste [2014] NZCA 23 at [5].7 EG (Fiji) v Minister of Immigration, above n 5, at [49].offending. As regards the other issues identified in the proposed question, it is clearfrom the Tribunal's decision that it did in fact take them into account.8[8] Ms Schaaf suggested the proposed appeal would provide the Court with its first opportunity to give guidance on the criteria to be applied by the Tribunal under s 207. She contended this was important because the legislation no longer contained criteria and circumstances vary so greatly from case to case.9 However, in our view those are reasons that militate strongly against this Court attempting to prescribe a list of criteria. Further, the application of s 207 has already been discussed by the Supreme Court in Guo v Minister of Immigration.10[9] The second proposed question of law is:(2) Was the Tribunal's decision unreasonable having regard to the interests of the appellant's child and his family when it concludedthat it would not be unjust or unduly harsh for the appellant to be deported.[10] The respondent objects to this question because it is new. That is to say, it was not advanced as a proposed ground of appeal in the High Court. We agree that is a valid objection having regard to the wording of s 245, which contemplates this Court considering the same questions as were considered in the High Court. In anyevent, the proposed ground of appeal is misconceived. Whether the Tribunal'sdecision was reasonable is not a question of law. Further, it is patently case specific and not a question of general or public importance.[11] This question also does not satisfy the test for granting leave.Outcome[12] The application for leave to appeal to the High Court is declined.8 [K] v Minister of Immigration, above n 1, at [16], [22], [57]–[60], [86], [90], [93] and [96].9 Under s 105 of the Immigration Act 1987 mandatory considerations were specified, including,for example, the appellant's age, personal and domestic circumstances, work record, and thelength of the period the appellant had lawfully been in New Zealand.10 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].[13] There is no reason why costs should not follow the event. We accordingly award costs in favour of the respondent for the application on a band A basis together with usual disbursements.Solicitors:Pabla Law, Manukau for ApplicantMeredith Connell, Auckland for Respondent