HOSSAIN v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 1484

HOSSAIN v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 1484 [19 June 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-7442[2013] NZHC 1484BETWEEN MD. ISMAIL HOSSAINApplicantAND CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentHearing: 19 June 2013Appearances: Applicant in personA Longdill for the RespondentJudgment: 19 June 2013(ORAL) JUDGMENT OF WOODHOUSE JParties / Solicitors:Mr MD. I HossainMs A Longdill, Meredith Connell, Office of the Crown Solicitor, AucklandThe application[1] This is an application for leave to appeal on a point of law against a decision of the Immigration and Protection Tribunal dismissing an appeal to the Tribunal on humanitarian grounds against liability for deportation.1Background[2] Mr Hossain is a 29 year old Bangladeshi national. He came to New Zealand on a student visa in July 2009. In New Zealand he obtained a certificate in business. He was granted a graduate job search work permit expiring on 13 August 2011. On 10 August 2011 Mr Hossain applied for a graduate work experience visa on the basis of his employment as a check-out operator and grocery assistant. The application was declined on 14 September 2011. Mr Hossain has been unlawfully in New Zealand since then.[3] Mr Hossain exercised his right of appeal to the Tribunal pursuant to s 206 of the Immigration Act 2009 (the Act). The relevant grounds for determining an appealon humanitarian grounds are in s 207(1) of the Act, as follows:207 Grounds for determining humanitarian appeal(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.The Tribunal's decision[4] The Tribunal identified the primary issue as being whether financial hardships currently being experienced by Mr Hossain and his family in Bangladesh are exceptional humanitarian circumstances in terms of the statutory test. I note that, in the course of the hearing in discussions with Mr Hossain, he confirmed that at the1 Re Hossain [2012] NZIPT 500617.heart of his application to the Tribunal were the particular financial hardships of his family in Bangladesh and his financial circumstances in New Zealand.[5] The facts as found by the Tribunal, which are not in issue on this appeal and could not be in issue on this appeal because it is confined to issues of law, are that Mr Hossain has no family connections in New Zealand. His father and step-mother, along with his brother and step-sister, live in Bangladesh. His mother is deceased. The Tribunal said there is no evidence of the degree to which Mr Hossain had settled in New Zealand and become part of the community in the 3 ¼ years he had been in New Zealand.[6] At two points in the decision the Tribunal summarised the circumstances relied on by Mr Hossain and noted that it had taken into account the submissions anddocuments produced by him. As to circumstances the Tribunal's decision includedthe following:[9] In his submissions, the appellant explains that, when his interim visa expired, he was unable to depart New Zealand for financial reasons. His part-time employment had not been enough to cover his living expenses and enable him to save money. As a result, he did not have sufficient funds to cover the cost of flying to Bangladesh. His father was unable to assist as he too had encountered financial difficulties. The appellant sets out the reasons for those difficulties in some detail. They include losses in the stock market and business investments. He also advises that his father has had health problems requiring surgery. He states that he is currently the only person in his family who can potentially earn sufficient money to support the family. Were he deported to Bangladesh, this would jeopardise his own wellbeing and that of his family.There was a further discussion of circumstances when the Tribunal came to assess the appeal.[7] After setting out s 207(1) of the Act the Tribunal referred to the decision of the Supreme Court in Ye v Minister of Immigration.2 This included, in particular, the discussion of the meaning of exceptional circumstances at [34] of the decision of themajority. For Mr Hossain's assistance, bearing in mind that he has conducted thisapplication on his own behalf (and has done so with competence), I will include in the transcript of this oral judgment the full discussion by the Supreme Court which2 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.extends over a number of paragraphs. The Supreme Court was considering s 47(3) of the Immigration Act 1987. It is the same as s 207(1) of the Act in all material respects.[33] It is important to consider the s 47(3) test in its statutory context. Section 47(3) is in a part of the Act which concerns removal of overstayers from New Zealand. Its terms must be read against the general rule that overstayers must leave New Zealand.3 Parliament has made a clear policy decision that overstayers should generally be compulsorily removed, if they do not leave voluntarily when asked to do so. The rationale for this policyapproach includes the importance of border control, New Zealand's right toexercise its own immigration policies and the avoidance of overstayers getting an advantage over those who go through the correct processes. However, it can equally be said that Parliament has accepted that people may be excepted from the general rule if they satisfy the requirements of s 47(3).[34] That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule.4 It is unnecessary and undesirable to attempt to define the compass of the word "humanitarian". It is unlikely tobe difficult to decide whether the circumstances of a particular case fulfil that description. If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.[35] The qualification of the word "harsh", by the word "unduly",recognises that there may be some degree of harshness in removing an overstayer from New Zealand. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. Undue in this context means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of NewZealand's immigration system. That is why a generic concern on thataccount is not enough to outweigh fulfilment of the first criterion in s 47(3).[36] The flavour of the subsection as a whole, with its interweaving of the concepts of exceptional circumstances, injustice or undue harshness and the public interest suggests that Parliament, being mindful of humanitarian considerations, contemplated overstayers being allowed to remain in New Zealand if there were humanitarian circumstances of a sufficiently unusual kind that their remaining would not undermine the general importance of maintaining the integrity of the immigration system. The test was designed to be strict but was seen as representing an appropriate reconciliation of personal humanitarian concerns with relevant aspects of the public interest.3 As per s 45 of the [1987] Act.4 See Creedy v Commissioner of Police [2008] 3 NZLR 7 (SC) at paras [31] – [32], where thisCourt, albeit in a different context, discussed the concept of exceptional circumstances.[37] One further point should be mentioned. The link between"exceptional circumstances of a humanitarian nature" and "unjust or undulyharsh" provided by the words "that would make it" can be read in two ways.The first is to hold that the presence of the relevant exceptional circumstances necessarily demonstrates injustice or undue harshness with no further assessment being required. On this basis the words "that would make it" mean that the necessary injustice or undue harshness derives from thevery fact of there being exceptional circumstances. The second reading involves an assessment of whether the exceptional circumstances found to exist make it unjust or unduly harsh to remove the person. On this view that consequence does not necessarily flow from the existence of exceptional circumstances of a humanitarian nature.[38] We consider the second reading is to be preferred as more appropriately serving the statutory purpose. Whether the particular exceptional circumstances give rise to the necessary injustice or undue harshness is a matter for the assessment of the decision-maker. It will depend on how compelling or persuasive the exceptional circumstances are. Had the first meaning been intended there need only have been reference to exceptional circumstances of a humanitarian nature. The presence of such circumstances would have fulfilled the first criterion without reference to injustice or undue harshness. Those concepts must have been intended to contribute to the overall test and would effectively be written out if the first meaning were adopted.[8] The central part of the reasons for the Tribunal's decision is as follows:[15] The Tribunal acknowledges the appellant's reasons for wishing toremain in New Zealand and that he feels a strong sense of obligation to do his best to support his family. However, his circumstances in this regard are not exceptional. It is common for appellants to originate from countries which have a standard of living much lower than that available in New Zealand with the result that remittances to family members who remain in the home country are an important source of income.CONCLUSION ON EXCEPTIONAL HUMANITARIAN CIRCUMSTANCES[16] The Tribunal has considered all of the appellant's circumstances asthey have been disclosed to it. The Tribunal finds that the circumstances outlined above, whether considered individually or cumulatively, are not exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand. As the first statutory requirement of section 207(1)(a) has not been met, the Tribunal is not required to consider the public interest issue arising under the second limb of section 207(1)(b) of the Act.Appeals to the High Court on a point of law by leave[9] This application is governed by s 245 of the Act. Section 245(1) limits appeals to the High Court to appeals on a point of law only. This is subject to leave of the High Court, or the Court of Appeal if the High Court refuses leave. Section245(3) provides that, in determining whether to grant leave, the Court "must haveregard to whether the question of law involved in the appeal is one that by reason ofits general or public importance or for any other reason ought to be submitted to theHigh Court for its decision".[10] An applicant for leave to appeal must therefore establish, firstly, that there is a question of law and, secondly, that the question of law meets the threshold prescribed by sub-section (3).[11] Ms Longdill, for the respondent, has referred me to a number of cases discussing what is meant by a question of law in the context of the Act and discussing the application of s 245(3). It is unnecessary to discuss these cases. Inote that copies are contained in the respondent's casebook and a copy of this was,of course, made available to Mr Hossain. These cases set out well establishedprinciples which I have taken into account. I will note the names of the cases in afootnote.5Discussion[12] Mr Hossain provided reasonably full written submissions and expanded on these in oral submissions. I took the opportunity to discuss the relevant legalprinciples with Mr Hossain to seek to ensure that he fully understood the limits onthe High Court in relation to an appeal of this nature, together with the bindingnature of acts of Parliament on the courts and of decisions of the Supreme Court onthe High Court. I acknowledge the careful and courteous way in which Mr Hossainadvanced his submissions.[13] I will summarise the grounds advanced by Mr Hossain, which I have separated into four grounds although there is a degree of overlap. I will not set out Mr Hossain's submissions in detail, but I have taken his full submissions into account, including his oral submission.5 Tong and Ho v Chief Executive of the Department of Labour HC Auckland CIV-2011-404-3513, 4 November 2011; Taafi v Minister of Immigration HC Auckland CIV-2011-411-711, 28 November 2011; Amosa v Minister of Immigration [2012] NZHC 2108; Nguyen v Minister of Immigration[2012] NZHC 2608; Nabou v Minister of Immigration [2012] NZHC 3365; Maddock v Minister of Immigration [2013] NZHC 585; X v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 642.[14] The first ground is, in essence, that the Tribunal misinterpreted s 207(1)(a) ofthe Act. Mr Hossain submitted that the interpretation was "overly rigid andimproper". This was directed in particular to the Tribunal's interpretation of the words "exceptional circumstances", but also to the words "of a humanitarian nature"and "unjust or unduly harsh". Mr Hossain referred to observations of McKay J inCommissioner of Inland Revenue v Alcan New Zealand Ltd.6 This included a reference to s 5(j) of the Acts Interpretation Act 1924. As I indicated to Mr Hossain that Act has, of course, been repealed.[15] I am not persuaded that there was any error by the Tribunal in its interpretation of s 207(1) as a whole or of any of the individual expressions in that sub-section. The critical part of the Tribunal's decision is the conclusion that thecircumstances advanced by Mr Hossain were not exceptional. There was no error of law in the meaning given to that expression by the Tribunal or, indeed, in the meaning given to any of the other expressions. I am satisfied that the essence of MrHossain's complaint is that the Tribunal's conclusion was wrong as a matter of fact.A finding of fact could amount to an error of law, but the circumstances in which that will occur are limited, as discussed in some of the cases earlier mentioned. There is no error of law in relation to the findings of fact in this case.[16] The second ground advanced by Mr Hossain was stated as follows:[The] improper application of law in [the] tribunal's decision is inconsistentwith attaining [the] object of [s 207(1)(a) of the Act] in promoting human welfare and [the] purpose of the Act in recognising rights of individuals.[17] This ground was based on an argument that the object of s 207 is "to advocate and promote human welfare, rights and humane action". As discussed with Mr Hossain, this is not as such the purpose of s 207, or of any related provisions dealing with applications that may be made by people who are liable for deportation. As s 207(1) makes quite clear, circumstances of a humanitarian nature must be weighed, but they are to be weighed against other circumstances and considerations and, ultimately, the broad purpose stated in s 3(1) of the Act – "to manage6 Commissioner of Inland Revenue v Alcan New Zealand Ltd [1994] 3 NZLR 439 at 443-444.immigration in a way that balances the national interest, as determined by theCrown, and the rights of individuals".[18] The further submissions that Mr Hossain advanced in support of this ground, as with the first ground, do make clear that the substance of this ground is a challenge to the findings of fact, not a contention that there was an error of law. In essence there is a submission that the Tribunal was wrong to conclude that the circumstances relating to Mr Hossain and his family are not exceptional. Mr Hossain gave emphasis to that by reference to the particular circumstances of his family and the particular reasons why there are serious financial difficulties. However, I am satisfied that none of this gives rise to an error of law as opposed to conclusions on the evidence with which Mr Hossain disagrees.[19] The third ground advanced by Mr Hossain, in the way I have sought to analyse his submissions, was that there was breach of s 27(1) of the New ZealandBill of Rights Act 1990. This is the provision requiring observance of the principlesof natural justice. Mr Hossain submitted that the decision was not fair and wasbiased. There is no evidential foundation for this contention. It does appear fairlyclear that the contention is in fact based on the conclusion reached by the Tribunal.As explained to Mr Hossain, s 27(1) is concerned with the way in which a hearing isconducted together with the requirement that the Tribunal members or a Judgeshould not be biased and should not give an appearance of bias. However, and as Isay, there is no evidential foundation for an argument there was breach of s 27(1).[20] The fourth broad ground was that the Tribunal had breached s 6 of the New Zealand Bill of Rights Act in that s 207(1)(a) of the Act had not been interpreted in amanner consistent with the Bill of Rights. The inconsistency was said to arise inrelation to s 27. To the extent that this ground differs from the preceding ground, itinvolves a misunderstanding of the effect of s 6 of the New Zealand Bill of RightsAct. In the present context s 6 would require consideration of the provisions ofs 207, not the way in which the hearing was conducted and the decision reachedunder s 207. There is nothing in s 207 of the Act which relevantly engages s 6 of theNew Zealand Bill of Rights Act.[21] It is for these reasons, directed to Mr Hossain's submissions and, as I say, taking account of the elaboration of these submissions orally during the hearing, that I am not persuaded that there was any error of law. As a consequence the application is dismissed.Costs[22] Ms Longdill sought costs for the respondent on the conventional grounds that the respondent, having succeeded, is entitled to costs. Costs were sought on a 2B basis. I explained the general rule to Mr Hossain. He advised that he is not able to pay costs.[23] On the question of ability to pay Ms Longdill referred me to the decision of the Court of Appeal in Chief Executive of the Department of Labour v Taito.7 The Court agreed with a submission that ability to pay costs does not affect entitlement to costs but is relevant only to enforcement. Ms Longdill advised that she anticipates that the respondent would not seek to enforce an order for costs if Mr Hossain voluntarily leaves New Zealand reasonably soon or if there is a deportation order. I do note that the evidence which appears to have been accepted by the Tribunal is that Mr Hossain does not have any financial resources of any consequence. A primaryreason for the respondent's seeking costs in these circumstances would appear torelate to the possibility of seeking to recover those costs in the future if Mr Hossain made application to return to live in this country.[24] On the authority of the Court of Appeal's decision and the general principlethat costs follow the event, I am satisfied there should be an order for costs. MsLongdill advised that the respondent's costs may be less than scale costs.Further steps by Mr Hossain[25] I took the opportunity to discuss with Mr Hossain and Ms Longdill furthersteps that may be taken in relation to Mr Hossain's presence in New Zealand. MsLongdill advised that the next formal step by the respondent is likely to be deportation. I indicated to Mr Hossain that it is likely to be in his interests7 Chief Executive of the Department of Labour v Taito CA225/04 and CA54/05, 19 September 2006.voluntarily to leave New Zealand rather than to be deported. Ms Longdill advised that the respondent is likely to give Mr Hossain an opportunity to leave New Zealand voluntarily. I do urge the respondent to give Mr Hossain all reasonable assistance it can consistently with statutory obligations.Formal decision[26] The application for leave to appeal is dismissed.[27] The respondent is entitled to costs on a 2B basis or actual costs, whichever are less._________________________________Woodhouse J