MALOPUTUNONOFO AFAMASAGA V MINISTER OF IMMIGRATION HC WN CIV 2008-485-79

MALOPUTUNONOFO AFAMASAGA V MINISTER OF IMMIGRATION HC WN CIV 2008-485-79 25 June 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2008-485-79IN THE MATTER OF the Immigration Act 1987 BETWEEN MALOPUTUNONOFO AFAMASAGA Appellant AND MINISTER OF IMMIGRATION Respondent Hearing: 6 June 2008 Appearances: Appellant appears in person I Carter for Respondent Judgment: 25 June 2008 at 10 amJUDGMENT OF MALLON J Introduction[1] Mr Afamasaga, who was born in Samoa and is a Samoan citizen, is presently the subject of a deportation order. He appeals against the Deportation Review Tribunal's ("the Tribunal") decision refusing to quash the deportation order. [2] Mr Afamasaga is now in his early thirties. He moved to New Zealand from Samoa, together with his wife and three children, when they were granted New Zealand residence on 23 October 1999 under the Samoan Quota Scheme. Their fourth and fifth child were born in New Zealand. The family settled into life in New Zealand and Mr Afamasaga worked as a labourer and a part-time cleaner. Mr Afamasaga is a devoted father to his children and that devotion is reciprocated by his children's love of him. The family wish to stay together and to remain in New Zealand where they consider the children will have a better standard of education and greater opportunities more generally.[3] On the evening of 16 September 2001, however, a 24 year old woman, who was considerably intoxicated, was walking through a car park in South Auckland when Mr Afamasaga struck her on the head from behind, rendering her unconscious. Mr Afamasaga carried her to his car in which other men were present. Mr Afamasaga sexually violated the woman with sufficient force to cause her vaginal injuries. Mr Afamasaga was disturbed by a witness and dumped the woman, who by this time was naked from the waist down, out of the car and onto the ground and drove off at speed. As a result of these events, Mr Afamasaga was convicted on 4 June 2002 on charges of unlawful sexual connection, kidnapping and injuring with intent to injure. On 19 July 2002 Mr Afamasaga was sentenced to 10 years' imprisonment, a sentence later described by the Court of Appeal as lenient. [4] On 25 September 2006 Mr Afamasaga was released on parole. On 7 August 2007 Mr Afamasaga drove with excess blood alcohol and was recalled to prison. He was released on parole on 29 May 2008 and has returned to his family and is looking for work. [5] As a result of the 4 June 2002 convictions, on 17 June 2005 the Minister of Immigration made a deportation order, under s 91(1)(a) of the Immigration Act 1987 ("the Act"), against Mr Afamasaga. Mr Afamasaga appealed against this order to the Tribunal. Following a hearing, on 13 December 2007 the Tribunal declined the appeal, finding, under s 105 of the Act, that deportation would not be unjust or unduly harsh and that it would be contrary to the public interest to allow Mr Afamasaga to remain in New Zealand. [6] Mr Afamasaga has a right of appeal from the Tribunal's decision on a question of law. Mr Afamasaga has filed a notice of appeal pursuant to that right and his appeal from the Tribunal is now before me.Representation of Mr Afamasaga[7] At the hearing of this appeal, at his request, Mr Afamasaga had the benefit of a Samoan interpreter. He was not, however, represented by counsel. The background to this is that at the hearing before the Tribunal Mr Afamasaga wasrepresented by Ms Lagolago of the Whitireia Community Law Centre. Following the Tribunal's decision, on 10 January 2008 the Law Centre filed a notice of appeal on Mr Afamasaga's behalf. The Law Centre filed the appeal on Mr Afamasaga's instructions with the intention of instructing counsel to represent Mr Afamasaga in the High Court. The Law Centre considered that it did not have the resources or expertise to represent Mr Afamasaga on this appeal. [8] Having filed the appeal, the Law Centre obtained two adjournments of the case management conference because of the difficulties it was having in obtaining counsel to represent Mr Afamasaga. By the time of the case management conference on 8 April 2008 the Law Centre had still been unsuccessful in obtaining counsel to represent Mr Afamasaga. Accordingly Mr Bevan from the Law Centre appeared at the conference on Mr Afamasaga's behalf. At the conference the appeal was set down for hearing on 27 May 2008. [9] On 16 April 2008 the Law Centre applied for an order declaring that it cease to be the solicitor on the record for Mr Afamasaga. The affidavit from Mr Bevan, filed in support of the application, advised:The Centre then tried to arrange Counsel to represent the appellant and the appellant, has been referred to legal aid lawyers, Rowland Woods, Barrister, Michael Bott, Barrister and Karun Lakshman, Barrister, but they have said the appellant does not have a case. The Centre does not have the resources or expertise to assist the appellant any further, and accepts the advice of the above lawyers that there is no chance of success.[10] On 5 May 2008 the High Court made the order declaring that the Law Centre ceased to be the solicitor on the record. [11] At the hearing on 27 May 2008 Mr Afamasaga appeared in person. He sought an adjournment to enable him to instruct a lawyer and to earn money in order to pay for a lawyer. The adjournment was opposed by Mr Carter, on behalf of the Minister, but Mr Carter submitted that, if the Court were minded to grant an adjournment, such adjournment should be as short as possible given the delay that had already occurred in the prosecution of the appeal. I granted an adjournmentrecording my reasons in a minute which was handed to Mr Afamasaga at the hearing on 27 May 2008. The minute records (amongst other things):I consider that Mr Afamasaga has had sufficient time to obtain legal representation. It is important in matters of this kind that appeals are heard promptly. As I explained to Mr Afamasaga this morning I am prepared to grant a short adjournment only to give him one more opportunity to obtain legal representation. The appeal will be heard on Friday, 6 June 2008 at 10 am. If Mr Afamasaga has not obtained legal representation he will need to represent himself at that hearing.[12] At the adjourned hearing on 6 June 2008 Mr Afamasaga appeared in person. His children were also present in court. Mr Afamasaga advised that he had made a number of telephone calls (he estimated that he had approached about six lawyers), but that he had been unable to find any lawyer prepared to act for him. He said that all of the lawyers had asked to be paid up-front and he did not have the money for that. He also advised that his efforts to find employment had not yet been successful. [13] In these circumstances I said that the hearing would proceed. I said that if, after hearing from Mr Afamasaga and Mr Carter, I considered that Mr Afamasaga had an arguable point of law then I would adjourn the hearing to enable Mr Afamasaga to complete a legal aid application in light of that view. If, however, I considered that there was no arguable point of law open to Mr Afamasaga then I would give my judgment accordingly. I explained this to Mr Afamasaga and the hearing then proceeded.Mr Afamasaga's submission at the hearing[14] Mr Afamasaga made a plea, through the interpreter, that he be permitted to remain in New Zealand. Mr Afamasaga said that he knew that he did a crime, he has served the time for that and he was pleased that he has been given the opportunity to come out of prison and look after his children. He said that he is sad that his children were unhappy when he was in prison and now that he is out of prison they are happy. He said that he loves them and they love him. He does not want his family "to go off the rails". He wants the chance to look after his family here. He said that is what is best for his family. He also said that it is a very hard question forhim whether his wife and children will go back to Samoa with him if he is deported. He said that it will be difficult for them to go back because they have been growing up here. [15] The matters Mr Afamasaga raises do not give rise to any question of law. It is unclear what Mr Afamasaga means by acknowledging that he did this crime. There was no such acknowledgement before the Tribunal. As is recorded by the Tribunal, a clinical psychologist, in a report to the Probation Service dated 25 January 2007, described Mr Afamasaga's denial of his offending as entrenched. As is also recorded by the Tribunal Mr Afamasaga continued to deny his offending in his evidence before the Tribunal. I have reviewed the transcript of the evidence before the Tribunal. Mr Afamasaga was asked a number of questions about this and he maintained that he had not sexually violated the woman. No error of law arises in this respect. [16] The other matters that Mr Afamasaga has mentioned are matters relevant to the first of the two criteria on which the Tribunal must be satisfied before it may quash a deportation order. The first of the two criteria is that the Tribunal must be satisfied that it would be unjust or unduly harsh to deport Mr Afamasaga. In considering this, the Tribunal took into account the matters that Mr Afamasaga raised in his submissions on the appeal. In particular the Tribunal: a) Accepted that Mr Afamasaga was a devoted father, that the children were his overriding priority and that his devotion was reciprocated by his children; b) Considered that Mr Afamasaga was strongly motivated to find work in order to support his family; c) Accepted that a return to Samoa would be a matter of considerable upheaval for the children, that the children are well established and thriving here, that the child receiving remedial assistance at school might not have opportunities for a similar level of assistance in theSamoan educational system and that there would be fewer educational opportunities generally for the children in Samoa. [17] The Tribunal considered, however, that the compassionate factors favouring Mr Afamasaga remaining in New Zealand needed to be weighed against the seriousness of the offending. It said that this weighing exercise involved notions of proportionality, so that with minor offending it would be easier to establish undue harshness or injustice with humanitarian factors. It said that, conversely, where the offending was extremely serious, even strong humanitarian considerations may mean that deportation is not unjust or unduly harsh. [18] In this case the offending was described as horrific. This was reflected in the 10 year sentence. The serious nature of the offending as reflected by the sentence, together with other factors indicating the ability of the family to return to life in Samoa with an adequate standard of living and support from their extended family, resulted in the Tribunal's conclusion that it would not be unjust or unduly harsh to deport Mr Afamasaga. [19] In determining whether deportation would be unjust or unduly harsh there are certain specified matters which the Tribunal is required to have regard to (see s 105(2) of the Act). The Tribunal had regard to each of these matters. It balanced the competing relevant considerations. The Tribunal's balancing approach was correct: see, for example Kumar v Minister of Immigration HC WN AP 101/99 14 June 2000 at [19]; M v Minister of Immigration HC WN AP 84/99 17 August 2000 at [9] and Phillpott v The Chief Executive of the Department of Labour HC WN CIV 2005-485-713 21 October 2005 at [70]. The Tribunal reached a view reasonably open to it in light of the matters relevant to the balancing approach. No error of law arises out of the matters that Mr Afamasaga has raised before me in the Tribunal's finding that deportation would not be unjust or unduly harsh. [20] The second criteria about which the Tribunal must be satisfied is that quashing the deportation order would not be contrary to the public interest. The Tribunal was not satisfied on this second criteria either. It considered that the risk of re-offending was such that it would be contrary to the public interest ifMr Afamasaga were to remain. It further considered that the circumstances and gravity of the offending were such that it would undermine public confidence in our immigration system to allow Mr Afamasaga to continue to permanently reside in New Zealand. The matters which Mr Afamasaga has raised are not relevant to this assessment and no error of law arises from those matters. [21] Mr Afamasaga has not referred to any matter that indicates that the assessment was made taking the wrong approach or without regard to the relevant considerations or that it was not a conclusion reasonably open to it.Matters arising under the notice of appeal[22] The notice of appeal filed on Mr Afamasaga's behalf states that the grounds of appeal are: a) That the Deportation Review Tribunal's process of assessment under section 105 of the Immigration Act 1987 was wrong and unfair to Mr Afamasaga; and b) With the result that, facts were merely stated as having been taken into account, but no assessments or tests were applied to these facts, or it was not apparent how the Tribunal arrived at their assertion; and c) Some mitigating factors surrounding the offence were not taken into account at all. [23] It is said that these are errors of law as per Leiatau v Minister of ImmigrationHC WN CIV 2003-485-742 26 November 2003. Although these points were not advanced by Mr Afamasaga at the hearing, because he was not legally represented I have considered whether there is an arguable question of law arising from them. I note the caution expressed in Faatafa v Minister of Immigration HC CHCH CIV 2005-409-001494 17 October 2005 about taking these grounds from Leiatau too far. But in any case, these grounds are not made out in this case.[24] The Tribunal reviewed the evidence and applied it to the statutory criteria. It addressed the two criteria for quashing a deportation order. On the first criterion, as stated above, it assessed the humanitarian considerations under each of the matters it was required to address. It concluded that a move to Samoa would involve upheaval and difficulties for the family. On the other hand the Tribunal noted that the family spoke Samoan and had family support in Samoa. The Tribunal also noted that Mr Afamasaga and his wife had been in New Zealand a short time relative to their time in Samoa. The Tribunal also reviewed the sentencing remarks of the High Court Judge who sentenced Mr Afamasaga to 10 years' imprisonment and the Court of Appeal's judgment in respect of that sentence. The Tribunal viewed the offending as horrific in light of its review of the material. All of this involved assessments on the facts. The approach the Tribunal took and the assessments it made were expressly set out and were reasonably open to it on the evidence before it. [25] On the second of the two criteria the Tribunal considered whether the risk of re-offending meant that it would be contrary to the public interest to allow Mr Afamasaga to remain in New Zealand. It set out all the material relevant to this assessment that was before it. It noted that the assessments made by the psychologist service for the Parole Board could serve as a useful starting point, but that it was for the Tribunal to reach its own assessment. It noted that the risk of re- offending it needed to consider was a risk of offending of a similar nature to that which gave rise to the deportation order. It said that the more serious the nature of the risk, the lower the risk of re-offending that triggered an adverse public interest consideration. It said that the nature of Mr Afamasaga's offending was such that the public should be protected from even a small risk of repetition. It said that it was persuaded by the most recent assessment from a psychologist that Mr Afamasaga's risk of re-offending was moderate-high. It found that Mr Afamasaga's risk of re- offending was such that he posed an undue risk to public safety. Again the Tribunal's approach and reasoning is apparent and it was an assessment open to the Tribunal on the material before the Tribunal. [26] In addition to the risk of re-offending the Tribunal also considered that the particular offending that gave rise to the deportation order meant that it would be contrary to the public interest to allow Mr Afamasaga to remain in New Zealand.The Tribunal expressly referred to Leiataua v Minister of Immigration in noting that the nature of offending alone did not determine whether it would be contrary to the public interest to allow Mr Afamasaga to remain. The Tribunal went on to consider the particular circumstances of the offending including the sentence imposed. It referred to the terror for women walking alone in the city streets that this kind of offending causes, the abhorrent nature of the offending, and the physical, emotional and psychological harm caused to the woman. It viewed the offending as of a kind that would undermine public confidence in our immigration system if Mr Afamasaga were permitted to remain in New Zealand. Again the Tribunal's approach and reasoning are apparent and its assessment was reasonably open to it. [27] There was no error in law in relation to mitigating factors in the offending. The only mitigating factor referred to by the sentencing judge was that Mr Afamasaga was a first time offender. Looked at more broadly (ie. beyond matters relevant to sentencing) it might be said that mitigating factors were that Mr Afamasaga had been drinking before the offending and that he has undertaken drug and alcohol counselling since then. Those factors might only be relevant if they altered the assessment as to the seriousness of the offending or the likelihood of re- offending. They did neither. The offending was serious even though Mr Afamasaga was a first offender. The seriousness of the offending is not diminished because Mr Afamasaga had been drinking. The risk of re-offending remained moderate-high despite the counselling.Any other error of law?[28] Because Mr Afamasaga was unrepresented, I asked Mr Carter whether he was aware of any other error of law that might be pointed to by Mr Afamasaga. Mr Carter said that he was not aware of any.Result[29] I am satisfied that Mr Afamasaga has not raised any arguable error of law. His appeal is dismissed.[30] The respondent seeks costs. Although costs normally follow the event, I decline to order costs in this case given the limited scope of this appeal, Mr Afamasaga's apparent financial position and that the deportation order will now be implemented. Mallon JSolicitors: I Carter, Crown Law Office, PO Box 2858, Wellington (ph: 04 472 1719, fax: 04 473 3482)