K v MINISTER OF IMMIGRATION [2016] NZHC 1960

K v MINISTER OF IMMIGRATION [2016] NZHC 1960 [23 August 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-000250[2016] NZHC 1960UNDER the Immigration Act 2009IN THE MATTER OF an application for leave to appeal thedecision of the Immigration and ProtectionTribunalBETWEEN KApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: 23 June 2016Counsel: M I Koya for the ApplicantK H Lawson-Bradshaw for the RespondentJudgment: 23 August 2016JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 23 August 2016 at 10.00 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Counsel: M I Koya, AucklandSolicitors: S Sharma, AucklandMeredith Connell, AucklandIntroduction[1] The applicant is a citizen of Fiji who arrived in New Zealand in April 2010. He was subsequently granted a permanent residence visa in 2012. He was convicted of indecent assault and served with a deportation liability notice. An appeal to the Immigration and Protection Tribunal (Tribunal) was unsuccessful.1[2] The applicant seeks leave to appeal from the decision of the Tribunal. He claims that the Tribunal erred in law by failing to take into account the fact that as a permanent resident, deportation would result in a permanent prohibition from re- entry into New Zealand, and other countries.[3] Leave to appeal is sought on the following question:Did the Tribunal err in law by its failure to balance the reasons triggering the liability for deportation against one of the consequences arising from the deportation, that is, the applicant would be permanently denied re-entry into New Zealand and probably be denied entry into several countries including the United Kingdom, Australia, Canada and the USA.Background[4] The applicant lived in Fiji for 28 years prior to arriving in New Zealand in2010. He initially arrived on a visitor's permit and was subsequently granted a workvisa in March 2011. He married in September 2010 but that marriage has since broken down.[5] The applicant was found guilty of indecently assaulting his cousin's daughter and his own stepdaughter. A sentence of home detention was imposed.[6] On 24 November 2014, the applicant was served with a deportation liability notice relying on both offences. The deportation notice included a statement that on deportation any visa held by the applicant would be cancelled and he would be permanently prohibited from re-entering New Zealand. It also stated that any attempt to return to New Zealand after deportation would mean the applicant would1 K v Minister of Immigration [2016] NZIPT 600173.not be granted a visa or entry permission and might in fact be detained under the Immigration Act 2009 (Act).Tribunal decision[7] The applicant appealed his deportation liability to the Tribunal pursuant to ss 206 and 207 of the Act. He represented himself before the Tribunal. He argued there were exceptional circumstances of a humanitarian nature arising from his relationship with a New Zealand citizen and the fact his mother and sister live in New Zealand and he has no immediate family in Fiji.[8] The Tribunal reviewed the background evidence of the applicant, his partner, mother and sister in some detail, and the competing submissions.[9] The Tribunal referred to the statutory grounds for an appeal as set out in s 207 of the Act. In relation to the first limb of the test in s 207(1)(a), the Tribunal referred to the Supreme Court decision in Ye v Minister of Immigration and the three ingredients which need to be established, that is: (a) exceptional circumstances; (b) of a humanitarian nature; (c) that would make it unjust or unduly harsh for the person to be removed from New Zealand.2 Reference was also made to the International Covenant on Civil and Political Rights as the protection of family interests were at issue in the appeal.[10] The Tribunal turned to consider whether there were exceptional circumstances of a humanitarian nature, noting that the Supreme Court had observed in Ye that exceptional circumstances must be "well outside the normal run of circumstances" and "truly an exception rather than the rule".3[11] The Tribunal found that none of the humanitarian circumstances claimed were exceptional. The applicant and his partner had entered into a relationship in the knowledge that he would likely be deported. Similarly, the applicant's mother had immigrated to New Zealand knowing that it was likely that he would be deported. She had also indicated that she would return to Fiji with him were he deported.2 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].3 At [34].[12] The Tribunal noted that the applicant had spent the majority of his life in Fiji before coming to New Zealand, and in comparison had only spent five years in New Zealand. The Tribunal therefore considered that he would still be familiar with the customs and lifestyle of Fiji.[13] The Tribunal concluded that the circumstances did not, even cumulatively, constitute exceptional circumstances of a humanitarian nature and there was noreason to consider either the "unjust or unduly harsh" or "public interest" parts of theenquiry. The appeal was dismissed.Legal principles[14] Section 245 of the Act provides for leave to appeal. The relevant parts of that section are 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.(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 by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.[15] In order to obtain leave therefore the applicant must satisfy the Court that there is a question of law 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.44 Minister of Immigration v Jooste [2014] NZCA 23 at [5].Grounds for application[16] The grounds for the application are stated in the amended notice of application dated 21 March 2016 as follows:2. The Tribunal erred in fact in that it failed to take into account relevant facts or gave insufficient weight to facts in existence in assessing whether there existed personal circumstances pertaining to the applicant and his family which would make it unjust or unduly harsh for the applicant to be deported, in that:(i) The Tribunal did not give sufficient weight to the fact that New Zealand was regarded by the applicant to be his home country.(ii) The Tribunal minimised the employment conundrum facing the applicant: the Tribunal was of the view that a mere possibility of employment in Fiji with incomparable income was no more than an inconvenience to the applicant.(iii) The [T]ribunal was dismissive of the plight of the applicant'smother as well as his partner because they were the architects of their own misfortunes.[17] Counsel for the applicant, Mr Koya, submits that the Tribunal erred by limiting its enquiry into exceptional circumstances to those arising from the applicant's partnership with a New Zealand citizen, the fact that his mother and sister live permanently in New Zealand, and the fact that he has no immediate family in Fiji.[18] In particular, Mr Koya submits that the Tribunal erred by failing to take into account the fact that the applicant would be permanently denied re-entry in New Zealand and likely denied entry into several other countries also.[19] Mr Koya also submits that the following factors make deportation extremely harsh:a. The applicant is permanently exiled from the country of his choice;b. He is unlikely to gain entry to several other countries;c. There is little or no prospect of employment in Fiji;d. There is no place for him to live in Fiji;e. The problems with employment and accommodation have the potential to create adverse psychological reactions in the applicant and lead to depression and related complications;f. His mother is left in the invidious position of making a choice of returning with him to Fiji to an uncertain future with no financialsupport ;g. His [partner] will have to choose between the applicant and her children;h. If she chose to accompany the applicant to Fiji she would be leaving behind not only her children but a settled life with home and employment and will have to cope with uncertainties in both aspect of life in Fiji.Analysis[20] I do not consider the threshold for leave set out in s 245 has been met in this case for the following reasons.[21] First, I do not consider the Tribunal erred in law in its approach to the applicant's appeal.[22] The fact that deportation would result in the applicant being permanently prohibited from re-entry to New Zealand was not a factor specifically raised before the Tribunal. That is despite the notice of deportation being clear in its terms. The applicant had the responsibility of ensuring that all information, evidence and submissions in support of the appeal were before the Tribunal.5[23] Against that background, I do not consider it accurate to characterise theTribunal as "confining itself to a narrow range" of humanitarian circumstances. The Tribunal considered all factors raised by the applicant and weighed those factors in light of the statutory test. There was no error of law in that approach.[24] Nor do I consider that the question of law identified in the applicant'sapplication arises in this case. The balancing exercise referred to in the applicant'squestion is part of the "unjust or unduly harsh" assessment.6 The three ingredients of5 Immigration Act 2009, s 226(1).6 Guo v Minister of Immigration [2015] NZSC 132 at [9].the first limb of s 207 have been interpreted as requiring a sequential assessment, so that the unjust or unduly harsh enquiry only occurs once exceptional circumstances of a humanitarian nature have been established.7 In this case, the Tribunal concluded that there were no exceptional circumstances of a humanitarian nature. There was no need to go on and conduct the balancing exercise and the Tribunal did not err in that respect.[25] The applicant challenges the weight accorded to various factors by the Tribunal. That challenge may only succeed if the weighting of those factors is so out of kilter that the decision is unreasonable.8 I do not consider the Tribunal'sassessment of the various factors can be faulted, and no error of law arose in that respect either.[26] Second, even if there was an error of law, I am not persuaded it is a matter of public or general importance.[27] As recognised in Jooste, the severity of the consequences which flow from permanent exclusion may be relevant to the overall assessment of exceptional humanitarian circumstances.9 But that is a case specific assessment. In Machida v Chief Executive of Immigration New Zealand, the Court of Appeal found that the Tribunal was:10[12] plainly entitled to find that a permanent prohibition ofMr Machida from re-entry into New Zealand was not a truly exceptional circumstance of a humanitarian nature, but rather something in the normal run of events.[28] Mr Koya submits that Machida may be distinguished on the facts. That may be so, but that simply confirms that permanent prohibition from re-entry is not, in and of itself, an exceptional circumstance. It will depend on the particular circumstances of each case as to whether permanent exclusion means the humanitarian circumstances may be considered exceptional. That enquiry does not7 Ye v Minister of Immigration, above n 2, at [30] and [34]–[38]. The Chief Justice dissented on this point, considering that the standard was composite at [7]; and see Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [25].8 LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC 2077 at [30].9 Minister of Immigration v Jooste, above n 7, at [61].10 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162 [2016] NZAR 662.raise a matter of public or general importance, but one which is tailored to the individual circumstances in any particular case.[29] Third, I do not consider the applicant can meet the "any other reason" criteriain s 245 either. It is only in exceptional cases, involving individual injustice to such an extent that the Court simply could not countenance the Tribunal decision standing, that this criteria in the section will be met.11 I do not consider there is anything about the applicant's personal circumstances which meet this very high standard.[30] In summary, I do not consider the threshold for leave under s 245 to be met in this case and the application must be declined.Result[31] The application for leave to appeal is declined.___________________Edwards J11 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].