PULOUTELE V THE MINISTER OF IMMIGRATION HC WN CIV 2005 485 11

PULOUTELE V THE MINISTER OF IMMIGRATION HC WN CIV 2005 485 11 21 September 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2005 485 11IN THE MATTER OF an appeal under section 104 of the Immigration Act 1987 BETWEEN MANUMAILAGI PULOUTELE Appellant AND THE MINISTER OF IMMIGRATION Respondent Hearing: 20 September 2006 Counsel: M J Lillico for the Appellant I C Carter and A J Williams for the Respondent Judgment: 21 September 2006JUDGMENT OF WILD J Introduction[1] The appellant, Mr Puloutele, alleges the Deportation Review Tribunal made three errors of law when dismissing his appeal against a deportation order issued to him by the Minister of Immigration on 9 September 2003. The deportation order followed serious criminal offending by Mr Puloutele. [2] The Tribunal delivered its decision on 19 May 2005, some 5½ months after the hearing on 23 November 2004. [3] Mr Puloutele's amended notice of appeal was filed on 4 April 2006. The series of events relating to his appeal which occupied the interim between that dateand the Tribunal's 19 May 2005 decision is chronicled in a judgment Goddard J gave in this proceeding on 28 March 2006. [4] This appeal is pursuant to s117 Immigration Act which limits it to errors of law in the Tribunal's decision. As in so many appeals of this sort, that is an important limitation.The alleged errors of law[5] In his written submissions, Mr Lillico summarised the alleged errors in this way:(a) Failing to consider the Appellant's relationship with Judit Berta as required by the Immigration Act Section 105 and New Zealand's international obligations; (b) Failing to consider the Appellant's work situation as required by the Immigration Act s105. (c) Misapplying the Immigration Act s105 by weighing factors for and against deportation rather than balancing the seriousness of the Appellant's offending with his personal circumstances. (d) Failing to deliver a decision in a timely manner.[6] At the outset of this morning's hearing, Mr Lillico abandoned (b). Before dealing with the three remaining alleged errors, some factual background is required.Factual background and New Zealand residence[7] Mr Puloutele is a Samoan citizen. Upon his arrival in New Zealand on 25 December 1999, aged 19, he was issued with a residence permit, as a dependent child of his mother who had New Zealand residence. New Zealand residence gave Mr Puloutele the privilege but not the right to live and work in New Zealand indefinitely, to vote here and access to a variety of New Zealand Social Security benefits. [8] Criminal offending weighs heavily against the grant of New Zealand residence. Section 7 Immigration Act provides that no residence permit shall begranted and no exemption shall apply to a person who has been convicted of an offence and sentenced to five or more years imprisonment, or to a person who has, within the preceding 10 years, been convicted of an offence and sentenced to 12 months or more imprisonment. [9] Similarly, Part 4, ss 91-114, of the Immigration Act provide for the deportation of criminal offenders. [10] In short, although New Zealand must put up with criminal offending by its citizens, it does not want overseas citizens who have committed serious criminal offences coming to live here, and its seeks to deport those who commit such offences while resident here. [11] Unfortunately, Mr Puloutele committed such offences. In May 2001 he was found guilty of the following offences: a) One charge of aggravated robbery on 10 October 2000 (about 10 months after he arrived in New Zealand). b) Three charges of wilful damage. c) One charge of threatening to kill (do grievous bodily harm). d) One charge of disorderly behaviour likely to cause violence. e) One charge of failing to answer Police bail. f) One charge of exceeding the breath alcohol limit for a person under 20. g) One charge of failing to comply with a prohibition by an enforcement officer. [12] Mr Puloutele was sentenced to 4 years imprisonment. He was released from prison in August 2003.[13] The deportation order for Mr Puloutele was made on 9 September 2003. It was based on Mr Puloutele's criminal offending, specifically on s91(1)(c) Immigration Act. [14] In their submissions for the Minister, Crown counsel make the point that Mr Puloutele could have been deported for earlier offending. He had been convicted of the following offences: a) On 29 August 2000 for using a document with intent to defraud on 16 August 2000. b) On 12 September 2000 for assaulting a female on 24 June 2000. These crimes were committed just six and eight months after he arrived in New Zealand. [15] As already indicated, Mr Puloutele appealed to the Deportation Review Tribunal against the deportation order. It was that appeal which the Tribunal dismissed in its decision of 19 May 2005, against which the present appeal is brought.Ground 1 of appeal: failing to consider Mr Puloutele's relationship with Ms Judit Berta.[16] The evidence before the Tribunal about Mr Puloutele's relationship with Ms Berta came from five sources. First, there was a letter Ms Berta sent the New Zealand Immigration Service on 5 August 2003 and the statement she attached to it. Ms Berta stated that she and Mr Puloutele had entered into a relationship in May 2003. She added "and he was released from prison on 21 July 2003". She said that she and Mr Puloutele were engaged to be married and that her son looked on him as a father figure. She addressed the predicament she and her son would be in if Mr Puloutele was to return to Samoa, and the difficulties of them following him to Samoa. She stated that Mr Puloutele was currently living with his brother (Mr Faasi Stowers) and his brother's partner in Thorndon, Wellington and that she and her sonwere living in Berhampore. She asked the Immigration Service to look favourably at allowing Mr Puloutele to remain in New Zealand. [17] This letter and statement pre-dated the service on Mr Puloutele of the deportation order, and they were about 15 months out of date by the time of the hearing before the Tribunal. [18] Ms Berta did not give evidence before the Tribunal. I think it common ground that she was not at the hearing. [19] Second, Mr Puloutele provided the Tribunal with a copy of the certificate of his marriage to Ms Berta on 16 October 2003. That marriage was 13 months before the Tribunal's hearing. [20] Third, Mr Stowers gave evidence to the Tribunal. He told the Tribunal that Mr Puloutele had been married for about a year. He said he had attended the wedding. His evidence was that Mr Puloutele and Ms Berta were not living together because Mr Puloutele had been in Ngaruawahia since March that year, and Ms Berta was in Wellington. He was not sure whether they were still a couple. This last point emerges from the following exchange between one member of the Tribunal and Mr Stowers:Q. Are they living together? A. Are they living together. Q. Yes. He and his wife? A. Not in the moment now because he's up here working. Q. So he's living with his uncle and he's been there since March or something? A. Yes. Q. And where is his wife living? A. Back in Wellington. Q. How often do they meet. I mean are they still together as a couple? A. I'm not sure about that.Q. Do you know her in Wellington? A. Yeah, I know her. Yeah. Yes.[21] Fourth, Mr Puloutele gave evidence himself. Neither in his written statement (dated 5 August 2003, as was Ms Berta's) nor in his oral evidence did he refer to his relationship with Ms Berta. In terms of the affects of his deportation, he stated:I know that myself and my family will be effected a great deal if I do get deported. I have no one in Samoa to help support me. When I arrived in New Zealand I was around distrustful friends which is why the devil entered and drove me to the wrong directions in the past. I also believe that my family and friends will loose a part of themselves by loosing me but I personally will be affected the most. I think that if a do get deported my life will go backwards. I have been in this country for nearly four years and I know that I have learned from what I have done and I can also see myself in the future representing and working for New Zealand. My mom will be the most effected in my family, she always wanted me to visit and be around her constantly. But if I do get deported I truly can not see myself visiting my mother and the reset of my family. I can't see myself getting any support in Samoa but I can see staying and having a future in New Zealand.[22] Fifth, other members of Mr Puloutele's family made statements and gave evidence before the Tribunal. None referred to Mr Puloutele's relationship with Ms Berta. [23] The Tribunal dealt with this aspect of Mr Puloutele's appeal in these passages:[23] The Tribunal had also received a copy of a letter of support from a Ms Judit Berta addressed to New Zealand Immigration Service providing reasons why the Appellant should remain in New Zealand. The letter was written in 2003, at the same time as some of the other letters received by the Tribunal. The basis of her submission was that she had met the Appellant shortly before his imprisonment in October 2000 and they had kept contact during this time through letters and telephone calls. She said in her letter that after his release from prison on 21 July 2003 they continued their relationship and at the date of this letter she stated that she was engaged to be married. Subsequent to this, the Tribunal was provided with a marriage certificate stating that the Appellant and Ms Berta had married on 16 October 2003. Unfortunately, the Tribunal did not hear frtom Ms Berta. The Appellant's evidence was that he did not live with Ms Berta but resided with his uncle. In that regard, the Tribunal did not have any recent evidence to suggest the Appellant was living in a relationship with Ms Berta, nor had he since his marriage. The Tribunal addresses this aspect of the evidence later in this decision.[24] (iii) Personal and domestic circumstances: The Respondent noted that at the time of the deportation intevie3w, the Appellant was unmarried although in October 2003 he married Ms Berta who had a young boy from a previous relationship. The Respondent observed that the evidence with regards to Ms Berta was unclear as the Appellant was now living in Hamilton and she continued to live in Wellington. [38] In relation to the letter from the Appellant's wife, Judit Berta, again the Tribunal observed that neither did she appear nor was there any additional evidence adduced by the Appellant himself that this relationship was ongoing. There was no evidence to establish how long the Appellant had lived with her, if at all. Accordingly, we are satisfied that the relationship of Ms Berta with the Appellant is not one that requires any further consideration for the purposes of assessing the Appellant's family interests.[24] To constitute an error of law, a decision-maker must act without evidence or upon a view of the evidence not reasonably open to it, or must draw unjustified inferences: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14; Auckland City Council v Wotherspoon [1990] 1 NZLR 76, 85-88. [25] Crown counsel also referred to the following passage in my own judgment inMohamud v Minister of Immigration HC WN AP21/98 5 October 1998 at p5:Quintessentially, error of law involves the application of an incorrect legal test or a wrong answer to a legal question upon unchallenged facts. Here, an obvious example would be Tribunal misinterpreting or mis-applying relevant provisions of the Immigration Act. Under the label "question of law" a limited incursion is now permitted into the factual area where either the Tribunal has: (1) Come to a conclusion without any evidence or upon evidence which could not reasonably support its conclusion, or (2) Failed to draw from unchallenged primary facts an inference favourable to the appellant, when such inference is the only one reasonably open. What the Court may not do under guise of a question of law is concern itself with whether the Tribunal was right or wrong in its conclusion i.e. with the merits of the case. Further, the weight to be given to the assessment of relevant considerations is for the Tribunal alone and not for consideration by the Court as a point of law. Recent authorities include Nicholls v District Council of Papakura [1998] NZRMA 233 at 235 and Auckland City Council v Wotherspoon [1991] NZLR 76 at 85-86. Specifically in the immigrationarea, there is the judgment of Giles J in Butler v Removal Review Authority[1998] NZAR 409.[26] This is not a situation where any error in fact-finding by the Tribunal could constitute an error of law. I agree with Crown counsel that this ground really attacks the weighting the Tribunal gave to this, s105(2)(c), factor. Within the constraints of s105, the weighting of the factors the Tribunal is required to take into account is for the Tribunal, and not for this Court. That is because the Tribunal is exercising a discretion, and it follows from the limits that apply when such exercise is challenged:May v May (1982) 1 NZFLR 165 (CA) at 170; Butler v Removal Review Authority[1998] NZAR 409, 425, 427. [27] In the course of Mr Lillico's submissions this morning, it emerged that this ground came down to a complaint that the Tribunal should have, but did not, by questioning Mr Puloutele, and/or by questioning Mr Stowers further, uncover the fact that Mr Puloutele's relationship with Ms Berta was at an end and that he was in a new relationship with Ms Shayna Dean in Ngaruawahia. [28] There are numerous difficulties with this argument. First, I do not accept that the Tribunal had the inquisitorial obligation Mr Lillico seeks to impose on it. When I asked Mr Lillico for authority, he referred to para [84] of Ronald Young J's judgment in Phillpott v Chief Executive of The Department of Labour HC WN CIV 2005 485 713 21 October 2005. This is what the Judge said there:[84] In considering s105(2) the Tribunal has, to some degree, an inquisitorial function. I accept the submissions of the appellant that the factors set out in s105(2) are mandatory in the sense that the Tribunal must have regard to them. This will require some analysis of the facts by the Tribunal. I do not expect that as a general proposition it will require the Tribunal to itself investigate but where the facts are presented, it must consider what inferences might arise from the facts relevant to the s105 criteria and the statutory test. (my emphasis)[29] Mr Lillico relies on the first sentence. But that must be read in the light of the later passage I have also emphasised. That explains that the Judge was referring to, not really an inquisitorial function, but an evidence analysis function.[30] I accept that the Tribunal is deemed to be a Commission of Inquiry and that certain provisions of the Commissions of Inquiry Act 1908 apply to it, subject to the provisions of the Immigration Act: clause 7, Schedule 2, Immigration Act. There is a discussion about the arguments of natural justice and fundamental human rights which might engage the Tribunal's inquiry powers in the judgment of Anderson J inFave v Minister of Immigration [1996] 2 NZLR 243 at 247. [31] But the position here is that Mr Puloutele, in my view quite deliberately, put a false position before the Tribunal. He would have the Tribunal believe that he was still happily married to Ms Berta and the father figure to her son. In fact, when the hearing took place, he had entered into a new relationship, with Ms Dean in Ngaruawahia. This emerges from the affidavit she swore on 31 August in support of this appeal. It seems that Mr Puloutele did not want the Tribunal to know that, or at least he certainly did not tell them that. I think that he assessed that that fact would not be helpful to his appeal. It is not tenable for Mr Puloutele to contend that the Tribunal failed in some inquisitorial function, when Mr Puloutele deliberately set out to mislead it. [32] The second problem is that I do not accept that the Tribunal's questioning of Mr Stowers left the state of Mr Puloutele's relationship with Ms Berta unclear, as Mr Lillico submits. He bases that submission on the exchange I have set out in [20] above. But that exchange makes it tolerably clear that Mr Puloutele and Ms Berta were no longer together, because Mr Puloutele had, some eight months earlier, left Wellington and Ms Berta, and gone to live and work in Ngaruawahia. [33] Finally, Mr Lillico submits that a proper "inquisition" by the Tribunal would have revealed that Mr Puloutele's relationship with Ms Berta was at an end, enabling the Tribunal to dismiss that as a consideration. But that is surely exactly what the Tribunal did, in [38] of its decision. I dismiss this first ground of appeal.Ground 3: misapplying the Immigration Act by weighing factors for and against deportation rather than balancing the seriousness of the appellant's offending with his personal circumstances[34] Mr Lillico submitted that the Tribunal's approach, particularly in [44] and [45] of its decision, was that ruled erroneous by Ronald Young J in Phillpott. The Tribunal in Phillpott had weighed factors in favour of deportation against those against deportation. It had then said:(43) Reaching a decision in this matter has required a true balance exercising. On the one hand, the Tribunal has had to weigh the serious nature of the offending against the positive factors in favour of the Appellant. The main issue was for the Tribunal to assess the likely effects of the Appellant's deportation on his family and in particular his wife. [35] Ronald Young J said this:[72] The balancing exercise identified by the Tribunal and undertaken by the Tribunal is not the exercise required of it by statute. The exercise required of it by statute is to identify the factors that might make up, either collectively or individually, undue harshness or injustice.[36] I do not accept that the Tribunal erred in that way, or misapplied s105 Immigration Act. In [25] of its decision, the Tribunal set out the two limbs of the test it needed to apply. Then, consistent with Goddard J's decision in M v Minister of Immigration HC WN AP84/99 17 August 2000, it considered Mr Puloutele's offending. It then turned to the interests of his family, including (as already noted) Ms Berta. It touched on his employment – his work experience. Summarising the position in [44], it set out the factors to be balanced. Although the Tribunal did not specifically say so, these can be viewed as factors that did not make it unjust or unduly harsh to deport Mr Puloutele. Counter factors were then set out in [45], and discussed in [46]. The Tribunal's final analysis was this:[47] In analysing the factors pursuant to s105 the Tribunal is not persuaded that it is either unjust or unduly harsh to deport the Appellant. His age, the length of time in New Zealand and his work experience, reveal no compelling reasons in his favour to militate against deportation. At the age of 23, he could readily adapt to life back in Samoa.[37] The Tribunal then turned to the second limb of the s105(1) test – the public interest.[38] I see no error in any of this. What s105(1) requires is a consideration of those matters that would make it unjust or unduly harsh to deport, against those which would not. In Kumar v Minister of Immigration HC WN AP101/99 14 June 2000 William Young J said this required a balancing exercise identifying and weighing the compassionate factors against the seriousness of the offending. As Ronald Young J pointed out in Phillpott, in terms of s105(1), it is strictly incorrect to weigh factors favouring deportation against factors against deportation. Although, in [45] of its decision, the Tribunal might have fallen into that strict error by referring to "the factors weighing against deportation", I am satisfied that it correctly understood and applied the two-limb test required by s105(1). I dismiss this third ground of appeal.Ground 4: failing to deliver a decision in a timely manner[39] As mentioned, the Tribunal's decision was delivered 5½ months after the hearing. Mr Lillico submitted that this breached the Tribunal's obligation to deliver a decision in a timely manner. Again, this ground relied on Ronald Young J's judgment in Phillpott, this time this passage:[26] The Tribunal heard evidence from the appellant's witnesses about the past, present and future position of Mr Phillpott and his family. It had submissions from both parties based on those facts. The respondent did not suggest that any consideration by the Tribunal had to be limited to the factual position in October 2003 when the Minister made his deportation decision. Self-evidently the Tribunal in its decision considered the most up to date information it had before it. The only concern that could arise in such a situation is when there is a long delay from hearing to decision because relevant facts may change. Here, there is no suggestion, nor any evidence, which the appellant identifies of any significant factual changes which might have affected the Tribunal's decision from date of hearing (July 2003) to date of decision (March 2004). To avoid the likelihood of such changes timely decision-making in relation to hearing will be advantageous. There was no error of law here by the Tribunal. They considered the position of the appellant as they were required to do on the facts known at date of hearing of the appeal and given those facts they considered whether at the hypothetical date of deportation the statutory tests were met.[40] Developing this last ground, Mr Lillico pointed to the "significant changes" to Mr Puloutele's circumstances between hearing and decision. Drawn from Ms Dean's affidavit, and summarised, these are: a) The relationship he began with Ms Dean in September 2004.b) He and Ms Dean starting to live together in early 2005. c) Ms Dean giving birth on 27 November 2005 to a first child by Mr Puloutele, and being pregnant with a second due next month (October 2006). [41] Mr Lillico submitted that deportation now would deprive these two children of their father, and of both their parents if Ms Dean went to Samoa with Mr Puloutele. He submitted that that situation, in combination with the other errors alleged, meant that the proceeding should be returned to the Tribunal for rehearing. [42] I entirely reject those submissions. First, I need not reiterate that Mr Puloutele deliberately misled the Tribunal about his domestic circumstances. At the time of the hearing his marriage to Ms Berta was effectively at an end and he was already in a relationship with Ms Dean. He did not tell the Tribunal that. He can hardly now complain that his relationship with Ms Dean – which obviously has developed considerably further – was not taken into account. [43] Second, at all material times Mr Puloutele was subject to a deportation order. I do not accept that he can enter into a new relationship, have one and then a second child by his new partner, and then raise those matters as obstacles to deportation. In the somewhat different context of interim injunctions, Chilwell J succinctly summarised my point in NZ Farmers Co-op Association of Canterbury Ltd v Farmers Trading Co Ltd (No 1) (1979) 1 TCLR 18 at 28:A defendant cannot create his own inconvenience and then have it taken into account in balancing the scales of convenience – at least not when he embarks upon questionable conduct with his eyes open.[44] What Mr Puloutele is seeking to do also, I think, offends against the fundamental principle that a party cannot take advantage of his own wrong:Moreton v Montrose Ltd [1986] 2 NZLR 496 (CA) at 503. To say that it is "wrong" for Mr Puloutele to have formed a relationship with Ms Dean and impregnated her twice might be overstating the position. But, certainly, he cannot seek to take advantage of that situation when, all along, he knew that he was to be deported. I regard his conduct as irresponsible, to say the least.[45] Third and last, although 5½ months is longer than is desirable for a decision of the Tribunal, I do not accept it is untimely delay. In my judgment in Mohamud, I made the point that a slow decision can still be a correct one, indeed, it may be more likely to be a correct one. In Mohamud I also referred to the cases holding that delay in delivering a decision is not vitiating unless it is so extensive that it is clear from the much delayed decision that the decision-maker has, literally, "lost the plot". In other words, unless it is clear that the decision has become divorced from the evidence and the submissions at the hearing. Mr Lillico readily accepted that that was not the position here. [46] I dismiss this fourth ground of appeal also.Result[47] I have dismissed each of the three grounds of appeal pursued. The appeal is accordingly dismissed. The deportation order stands and may now be given effect.Solicitors: Sladden Cochrane, Wellington for the Appellant Crown Law Office, Wellington for the Respondent