FAATAFA V THE MINISTER OF IMMIGRATION HC CHCH CIV-2005-409-001494

FAATAFA V THE MINISTER OF IMMIGRATION HC CHCH CIV-2005-409-001494 17 October 2005IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2005-409-001494 LIPENE FAATAFAAppellant vTHE MINISTER OF IMMIGRATIONRespondent Hearing: 28 September 2005 Counsel: A C Shaw and D Vukelic for Appellant H L Dempster for Respondent Judgment: 17 October 2005JUDGMENT OF PANCKHURST J Introduction[1] This is an appeal in law against a decision of the Deportation Review Tribunal (the Tribunal), in which a decision of the Minister of Immigration ordering the deportation of the appellant to Samoa was unsuccessfully challenged. [2] In February 2003 Mr Faatafa was sentenced to five years imprisonment for wounding with intent to cause grievous bodily harm. Subsequently, the Ministerordered that he be deported. He appealed against the order upon the statutory grounds that "it would be unjust 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" : s105(1) Immigration Act 1987 (the Act). However, the Tribunal was not satisfied that this test was met and, accordingly, the appeal was dismissed. [3] The present appeal is based on two questions of law, which centre upon the above statutory test and whether it was correctly applied in the circumstances of this case. I shall set out the questions of law, shortly.Two preliminary issues[4] The appeal is out of time. The appeal was heard on 12 July 2004. The decision was not issued until 8 June 2005. Mr Faatafa had 28 days within which to lodge a notice of appeal : s118. In fact the appeal was filed on 25 July, therefore about three weeks out of time. [5] Counsel for the respondent, Mr Dempster, did not oppose an extension of time pursuant to s123 of the Act. I shall consider the merits of the appeal and return to the question of an extension of time in light of the conclusions reached concerning the questions of law. [6] The second matter concerns security for costs. Pursuant to r713(2) of the High Court Rules security for costs must be fixed, "unless the Judge considers that in the interests of justice no security is required". In terms of r713(5) the decision concerning security may be deferred at the time of the initial case management conference "if an appellant has applied for legal aid under the Legal Services Act 2000". Such was the case here. [7] On 13 September Hansen J set the appeal down for hearing and "suspended" security for costs. The Judge also directed that the appellant file an affidavit of means, no doubt because he considered that if a legal aid decision was not madebefore the hearing date, a decision may be reached that in the interests of justice security was not required. Of course, if legal aid is granted, security is waived. [8] In the event there has been no decision in relation to Mr Faatafa's legal aid application. On the other hand an affidavit of means was filed. Mr Dempster challenged its adequacy. In essence it contained an assertion that all of the appellant's wages were absorbed in "boarding costs and repayment of debts", so that he had "little to no funds in (his) bank account". A transaction list for the bank account was annexed as an exhibit. This indicated that Mr Faatafa receives wages of $260.41 per week and some weeks an extra $100, presumably on account of overtime work. There are regular withdrawals from the account, but the transaction list does not show a running balance. Counsel contended there was insufficient information to enable me to conclude that security was not required in the interests of justice. [9] When pressed Mr Dempster indicated that he would prefer the appeal to proceed, rather than for it to be adjourned so that the question of security could be properly resolved. While I agree with him that the information provided concerning the appellant's means is inadequate, my impression is that legal aid may well be granted and, if it is not, that with additional information security may be waived in terms of r713(2). In these circumstances, unsatisfactory as they are, I indicated to counsel that I would direct security was not required, and the appeal proceeded in light of that indication.The questions of law[10] The questions of law as framed in the notice of appeal were:a The Deportation Review Tribunal incorrectly applied the test to be met by the appellant, in order to quash a deportation order pursuant to section 105(1) of the Act, by finding that "considerable hardship" was insufficient to render the deportation as being "unjust or unduly harsh"; and b The Deportation Review Tribunal incorrectly applied the test to be met by the appellant, as required by section 105(2)(e) of the Act, in that it failed to give fair consideration to the particular circumstances of the offence and of the offender, and instead focused primarily on the seriousness of the offence.These contentions underwent a degree of refinement in the course of argument, a matter to which I will return in due course. [11] The right of appeal conferred by s117 of the Act restricts appeals to this Court to a "question of law". Error of law contemplates the application of a wrong legal test, a conclusion reached without evidence to support it, or a failure to reach a conclusion in relation to which there were unchallenged primary facts supportive of such conclusion. I did not discern any difference between counsel as to the required approach. In this instance the suggested errors of law fall into the domain of applying a wrong legal test, if anything.Factual background[12] The appellant was born in Western Samoa on 15 March 1962, so that he is now 43 years of age. He remains a Western Samoan citizen. [13] On 11 June 1984 he arrived in New Zealand and was granted a temporary permit, and subsequently a second such permit, which expired on 25 September 1984. Thereafter the appellant remained in New Zealand unlawfully. [14] On 18 October 1988 the appellant lodged an application for residence in New Zealand, on the basis of his marriage to a New Zealand permanent residence holder. The application was declined. [15] On 1 March 1992 Mr Faatafa lodged a second residence application on the basis that, by then, his family comprised his wife and two children who had been born in New Zealand. [16] On 21 January 1993 the appellant was granted New Zealand residency. [17] On 27 June 2002 the appellant assaulted his wife by striking her repeated blows to the head with a mallet. She sustained extensive and serious facial and head injuries. Criminal charges were laid.[18] On 12 December 2002 in the High Court at Auckland Mr Faatafa pleaded guilty to a charge of wounding with intent to cause grievous bodily harm. On 11 February 2003 he was sentenced by Venning J to five years imprisonment. [19] I interpolate at this point that in terms of s91(1)(d) of the Act the appellant became liable for deportation, despite being the holder of a residence permit, when he committed this offence within ten years of the grant of such permit and upon his being sentenced to imprisonment for five years. In fact Mr Faatafa had held his residence permit for nine years five months at the date he committed the crime. It is also noteworthy that had his sentence been anything less than a five year term, the further cumulative requirement of s91(1)(d) would not have been satisfied. That said, the fact is that Mr Faatafa did commit a crime within the ten year period and upon which he was sentenced to five years imprisonment. [20] On 26 August 2003 the Minister of Immigration issued a deportation order. On 9 October 2003 an appeal was filed against the order. [21] The hearing before the Tribunal was on 12 July 2004. On 15 February 2005 the appellant was released from prison. Finally, on 8 June 2005 the Tribunal issued its written decision in which the appeal against the deportation order was dismissed. [22] In addition to this chronology it is common ground that, the subject conviction aside, Mr Faatafa has fared well during his time in New Zealand. He has fashioned what the Tribunal described as "an excellent work record". He has been in steady employment as a machine operator or fork hoist driver. Only briefly, between the date of his conviction and sentencing, was he in receipt of a benefit. [23] The appellant encountered difficulties in relation to his marriage in about 2000. By then Mr and Mrs Faatafa had three children, who were born in 1989, 1990 and 1995. For approximately two years, until shortly before the assault was committed on 27 June 2002, the appellant and his wife were living apart. However, they were attempting to reconcile at the time of the assault. Two of the children had been sent to Australia by Mrs Faatafa, which was a bone of contention between them.[24] Mrs Faatafa and the three children are now resident in Australia. Hence, when Mr Faatafa was released from prison earlier this year he made his home in Christchurch, where he has the support of his sister and her family. [25] Generally the Tribunal found that the appellant has been a worthwhile member of society since he has been in New Zealand, save for his one conviction. It also noted that at the conclusion of his sentence an assessment was reached that his risk of reoffending was low, the more so if he associated with persons who did not condone the use of violence, continued to be alcohol abstinent and took counselling if he became involved in another intimate relationship.The Tribunal decision[26] Mr Shaw was not critical of the decision of the Tribunal, save in relation to the suggested errors of law. He accepted that it was detailed and closely considered. I agree with these observations. The judgment contains a meticulous discussion of all of the factors set out in s105(2) being the section which empowers a tribunal to quash a deportation order:(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.[27] Given the focused nature of the questions of law posed by this appeal, there is no need for me to duplicate anything approaching the detailed discussion contained in the Tribunal's decision. Instead, I can go straight to that section of the decisionheaded "Summary" in which the Tribunal set out the considerations for and against deportation, and its conclusions. [28] First the Tribunal said this:[38] We now summarise the factors to be balanced in this case: Factors in favour of deportation: (a) The offending was very serious and involved an act of serious violence; (b) The offence involved the use of a weapon (steel mallet); (c) The victim has serious and ongoing side-effects from the offending; (d) There is possibly one known family member residing in Samoa; (e) Transferable work skills; (f) Appellant's children live in Australia; (g) The Appellant's immediate family resident in America Samoa; (h) The Appellant has lived in New Zealand lawfully for 11 years, 2 of which have been in prison.I am unsure why factor (h) is listed as a matter favouring deportation. [29] The Tribunal continued:Factors in Appellant's favour to militate against deportation: (a) The Appellant is a first time offender and pleaded guilty to the offence at an early stage; (b) The Appellant has addressed the causes of his offending and undertaken counselling and anger management in the Faith-based Unit at Rimutaka; (c) The Tribunal regards his remorse as genuine; (d) He has not incurred any charges during his time in prison and his behaviour during imprisonment has been favourable; (e) There is evidence of immediate family support in New Zealand with little evidence of close immediate family residing in Samoa; whilst there is little evidence of family living in American Samoa there are no automatic rights to residence; (f) He is assessed as low to moderate risk of re-offending; (g) The Appellant has a good work record and there is no evidence of being a "drain on the taxpayer"; (h) He has resided in New Zealand for 20 years (of which 11 years are lawful).[30] It was then recorded that the Tribunal had found the case "a difficult matter to determine". Citing from a previous decision of this Court the Tribunal observed that it was required to make a value judgment, following a balancingexercise which essentially involved an assessment of the compassionate factors against the seriousness of the offence. [31] Then in the next paragraph the Tribunal made a pivotal finding concerning whether deportation would be unjust or unduly harsh:[40] We have taken into account the circumstances of the offending, and the Appellant's genuine expression of remorse. However, we also remind ourselves that the test according to Fa'avae (supra) goes beyond considerations of convenience or ordinary hardship. There is no doubt that if the Appellant is deported to Samoa there will be considerable hardship. But on the evidence before us we do not find that the threshold has been met for establishing that deportation would result in injustness or undue harshness to the Appellant. (emphasis added)The "considerable hardship" finding gave rise to the first question of law, to which I will turn shortly. [32] The next section of the decision, headed "Public interest" contained an assessment of the second limb of the statutory test. The Tribunal began by noting that whether there was a likelihood of reoffending, and whether the offending itself was of a particularly serious nature, would likely determine whether it was in the public interest to allow the appellant to remain. Detailed reference to various materials held by the Department of Corrections followed, including a description of the psychological evidence relevant to Mr Faatafa's risk profile in terms of reoffending. As I read this part of the judgment, the Tribunal seemed to accept that the appellant was of good character (save for the one serious crime), and that there were positive signs he had made good progress in addressing the causes of his offending. [33] However, an adverse conclusion was reached:[45] We take into account that at the time of hearing the Appellant was completing his sentence satisfactorily, and that the Faith-based Unit consider that he has made considerable gains from the programme. He also appeared interested in completing other programmes to cement progress he has made. As was stated in Amosa v Chief Executive of the Department of Labour(unreported, High Court, Wellington, AP 208-98, 3 April 2000, Gendall J) at page 14:"The importance of good or reformed character is more particularly [relevant] in considering whether it would be contrary to the publicinterest for the appellant to remain in New Zealand. The risk, or rather a calculated risk, for further offending here is an aspect of that public interest."Next followed the decision itself which was that for the reasons set out "the Appeal should be dismissed and the (Deportation) Order confirmed".Question 2 : "Nature of the Offence"[34] Although this was the second alleged error of law, for reasons which I trust will become clear, I think it is appropriate to confront it first. To recap, the question was posed in these terms:The Deportation Review Tribunal incorrectly applied the test to be met by the appellant, as required by section 105(2)(e) of the Act, in that it failed to give fair consideration to the particular circumstances of the offence and of the offender, and instead focused primarily on the seriousness of the offence.[35] Section 105(2)(e) requires the Tribunal to have regard to "the nature of the offence or offences of which the Appellant has been convicted and from which the liability for deportation arose". The gist of the argument was that on a proper appreciation of the terms of the decision the Tribunal had effectively focused upon the seriousness of the offence, to the exclusion of a range of factors pertaining to both the offence and the offender which, on any view of it, significantly mitigated the crime. Put another way, the effect of the argument was that the Tribunal was mesmerised by the awfulness of the crime and did not, therefore, consider other matters which were relevant to an assessment of the "nature of the offence". [36] Mr Shaw put the argument in various ways in the course of his submissions. He began with the point that it was the gravity of the particular offence which fell for consideration, not the seriousness of that type of offence per se. I agree, as did Mr Dempster. By reference to parts of the decision in which the Tribunal reviewed at some length the sentencing observations of Venning J, counsel argued that s105(2)(e) was approached with a "closed mind". At another point the approach of the Tribunal was criticised as absolutest "because the nature of the offence was allowed to override all other factors". At another point Mr Shaw put the argument in terms that the Tribunal "gave an overwhelming primacy to the offence of woundingwith intent to cause grievous bodily harm " so that the Tribunal "prevented the particular circumstances of the offence and of the offender from receiving any fair consideration". [37] This argument owed a good deal to the judgment of Durie J in Levi Leiataua v The Minister of Immigration (Wellington CIV-2003-485-742, 26 November 2003). The case was similar to the present one in that a deportation order had been made against the appellant, who was a school boy aged 16 when he committed rape, and the thrust of the argument was that the Tribunal erred because of its single focus upon the type of offence involved, rather than the gravity of the particular offence. The Judge accepted an argument that the Tribunal was wrongly persuaded to take the view that a conviction for rape in itself, meant it was not unjust, and it was in the public interest, for the offender to be deported. This I consider was the basis of the decision to allow the appeal. Durie J added this:[31] In similar vein I must reject emphatically the suggestion made in submissions in this case that a matter may be deemed to have been considered and appropriately weighed simply because the matter has been mentioned in the recitation of arguments and facts. It is one thing to note a fact and another to assess its significance or to determine whether weight should be given to it or not. Where an assessment is called for, as here, then the assessment must be given, and it must be given openly and transparently.Mr Shaw submitted that the same situation obtained in the present case. That is, although the Tribunal mentioned a range of matters in its decision, it could not be said that proper weight had been accorded to them. [38] Before I turn to consider whether this criticism can be validly made in relation to the decision under appeal, I record my concern at the scope which exists for the reasoning contained in the above quotation to be misunderstood, or misapplied. There may be cases where a list of factors, or considerations, are listed in a decision, but, on analysis, it is obvious that there has been no rational assessment of them. But for such a threshold to be met I think that the decision is likely to be erroneous in law for irrationality in a Wednesbury sense, or perhaps because there are no reasons given in support of the essential conclusion.[39] But where, as here, a value judgment must be made, and the decision-maker refers to a range of matters which have influenced the final judgment, an appellate court must be hesitant to characterise the decision as erroneous in law because such factors have merely been recited, but not considered. Otherwise, there is obvious potential for an appellate Judge, whose function is confined to correcting errors of law, to review the merits of the decision in the guise of deciding that relevant factors have been recited, but not in fact considered. [40] In any event I am not persuaded that the Tribunal was overwhelmed by the awfulness of the crime and did not, as a result, have regard to other factors pertaining to the offence and the offender. In argument considerable emphasis was given to the extent to which the sentencing remarks of Venning J were mentioned and discussed in the Tribunal's decision. While that is so, I am unpersuaded that the Tribunal has inappropriately deferred to the views of the sentencing Judge. [41] It did accept that the comment of Venning J "whatever the trigger for the attack was there can be no excuse or justification for acting in the way you did" was apposite. It seems to me such assessment was virtually inevitable. Plainly there were differences between Mr Faatafua and his wife, particularly concerning her sending two of the children to Australia. But these differences did not mitigate the seriousness of the crime. [42] On the other hand the Tribunal did in my view place the crime in its proper context. This is evident when one looks at the summary of factors militating against deportation [para [29]). The crime was viewed as out of character. Mr Faatafa's early plea of guilty was recognised. His remorse was accepted to be genuine. Moreover, the Tribunal brought to account the steps taken by Mr Faatafa, post conviction and sentence, to address the causes of the offending. In these circumstances I am unpersuaded that the Tribunal focused on the gravity of the particular offence, at the expense of any proper consideration of the circumstances of the offence and the offender.Question 1 : was the "considerable hardship" finding sufficient?[43] This question of law was an argument that the Tribunal erred in expressly finding that "considerable hardship" was insufficient to render the deportation unjust or unduly harsh. In other words, Mr Shaw contended that the Tribunal set the bar too high and in doing so misunderstood the statutory test. [44] The thrust of the argument was sought to be captured in submissions as to the meaning of the words "considerable" and "hardship". The former was equated with significant, or large in extent or degree. Hardship was likened to suffering. Hence, counsel submitted that considerable hardship equated to significant suffering, which was said to be sufficient to satisfy the test that deportation would be unjust or unduly harsh. [45] Mr Shaw sought to bolster the basic argument by reference to various factual considerations, which he urged me to accept as sufficient to meet the test and, therefore, as confirmatory of the conclusion that the Tribunal must have applied a standard which was too stringent. I do not consider that this aspect of the argument assisted matters. It is not my function to reassess the various factual issues and decide whether I agree with the weight accorded to them by the Tribunal. [46] Mr Dempster stressed this in the course of his argument. He rightly pointed out that the Tribunal hears many deportation appeals and has therefore developed an expertise and experience in assessing different cases and factual situations. Moreover, this Court exercises only a supervisory jurisdiction over the Tribunal, limited to the correction of legal error. A difference of opinion is not an error of law. [47] More specifically, and with reference to the considerable hardship finding, counsel submitted that the conclusion of the Tribunal was impeccable. Focusing most upon the word "considerable", Mr Dempster substituted "worthy of consideration by reason of its magnitude" as an appropriate definition of the word, which was said to demonstrate that considerable hardship did not equate to unjustness or undue harshness. Put bluntly, he submitted that considerable hardship might well be thoroughly deserved, and therefore may not be unjust or unduly harsh.Counsel contended that "not only does the finding disclose no error of law, as a matter of abstract reasoning it is correct". [48] What does the test that it would be unjust, or unduly harsh to deport someone, comprehend? First, the Tribunal must be "satisfied" as to the existence of unjustness or undue harshness. Although taken from a different context, I think the observations of the Court of Appeal in R v Leitch [1998] 1 NZLR 420, in considering the need to be satisfied in the context of the imposition of a sentence of preventive detention, are equally apt in the present context. At 428 the Court observed that:The need to be "satisfied" calls for the exercise of judgment by the (decision-maker). It is inapt to import notions of the burden of proof and of setting a particular standard, eg beyond reasonable doubt.It then approved and adopted an observation from an earlier criminal case:The phrase "is satisfied" means simply "makes up its mind" and is indicative of a state where the Court on the evidence comes to a judicial decision. There is no need or justification for adding any adverbial qualification [49] A number of the cases to which I was referred, and indeed the submissions of counsel, endorsed the thinking that s105 requires a balancing exercise to be undertaken, by which the seriousness of the offence is to be weighed against the compassionate factors said to render the pending deportation unjust or unduly harsh. In real terms this may frequently be the case. However, s105(2) does not mandate a balancing exercise in quite these terms. Rather it lists a range of matters to which the Tribunal shall have regard in assessing whether it would be unjust or unduly harsh to deport the appellant from New Zealand. Indeed, "the nature of the offence or offences of which the Appellant has been convicted and from which the liability for deportation arose" is factor (e) amongst eight. It is not accorded primacy or any particular status. But, that said, in many cases the essential task of the Tribunal will entail assessing the seriousness of the offence (or offences) as against the personal militating factors. [50] Although the concepts of unjustness and undue harshness are disjunctive, it is difficult, I think, to readily draw a distinction between them in the present statutorycontext. Mr Dempster submitted that the test was whether deportation would be unjust in the sense of being unduly harsh. That, to my mind, neatly captures the essence of the test. [51] Does the finding of considerable hardship mean that deportation of Mr Faatafa would be unjust, in the sense of being unduly harsh? Although a fine line distinction is involved, I think Mr Dempster was right in submitting that considerable hardship is something less than undue harshness. It seems to me that the Tribunal deliberately used the phrase considerable hardship in order to convey that the factors which militated against deportation were indeed significant. However, it also found that the case remained one which did not satisfy the statutory test, did not quite cross the unduly harsh threshold. I doubt that this point is susceptible of further elaboration. For these reasons I consider that the argument fails.Result[52] Although leave to appeal is granted, the appeal is dismissed. No purpose would be served in making an order for payment of costs by the appellant._________________________________________________________________________________ Solicitors: Lane Neave, Christchurch for Appellant Crown Law Office, Wellington Central for Respondent