MESAKE EPENISA V MINISTER OF IMMIGRATION HC WN CIV 2008-485-611

MESAKE EPENISA V MINISTER OF IMMIGRATION HC WN CIV 2008-485-611 19 August 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2008-485-611IN THE MATTER OF the Immigration Act 1987 AND IN THE MATTER OF an appeal under s 117 of the Act BETWEEN MESAKE EPENISA Appellant AND MINISTER OF IMMIGRATION Respondent Hearing: 7 August 2008 Appearances: H Ratcliffe for Appellant V Casey for Respondent Judgment: 19 August 2008 at 11.45 amJUDGMENT OF MALLON J Introduction[1] Mr Epenisa is a Tongan citizen. He is 23 years old. He has been living in New Zealand since 1994 when, at the age of 10, he came to live here with his father. In February 2002 he was granted a residence permit. [2] The Minister of Immigration ordered that Mr Epenisa be deported. This was because Mr Epenisa committed two offences, each being of a kind for which the Court had power to impose imprisonment for a term of 12 months or more, within five years of first being granted residency in this country (s 91(1)(c) of the Immigration Act 1987).[3] The Deportation Review Tribunal ("the Tribunal") upheld the deportation order made by the Minister of Immigration. The Tribunal was not satisfied that it would be unjust or unduly harsh to deport Mr Epenisa (s 105(1) of the Immigration Act). It also considered that to allow Mr Epenisa to remain in New Zealand would be contrary to the public interest (s 105(1) of the Immigration Act). [4] Mr Epenisa appeals against the Tribunal's decision. His appeal is on the basis that the Tribunal erred in law by failing to take into account the effect of his deportation on his partner's two children with whom he had recently been living.Background[5] The two convictions giving rise to the deportation order are for a burglary carried out on 19 February 2004 and for aggravated robbery committed on 25 March 2004. These were not Mr Epenisa's first convictions. [6] In January 2003 Mr Epenisa committed two offences of burglary and an offence of unlawfully taking a vehicle. He was sentenced to community work and supervision and was ordered to undertake counselling. In June 2003 he committed the offence of robbery by assault, for which he was sentenced to one year three months' imprisonment, and breached his conditions of supervision. [7] The 19 February 2004 burglary took place soon after his release from prison on his sentence for the robbery by assault. The burglary involved Mr Epenisa entering premises through an insecure window and stealing property valued at $5,607. None of the money taken was recovered. Mr Epenisa initially pleaded not guilty and was granted bail. While on bail, on 25 March 2004, he committed the aggravated robbery. In this incident Mr Epenisa and two associates threatened a service station attendant. Mr Epenisa was armed with a screwdriver and he took $240 cash from the till. Mr Epenisa pleaded not guilty to the aggravated robbery charge and was remanded in custody. He subsequently entered guilty pleas on both charges and was sentenced on 25 February 2005 to three and a half years' imprisonment. Having served part of that sentence he was granted parole and released from prison on 26 September 2007.[8] Since his release he has been living with Ms Fagan and their son, who is three years old. Also in the home are two other children aged ten and eight. They are Ms Fagan's sons from previous relationships. [9] Mr Epenisa and Ms Fagan's relationship began in 2003. A few weeks later Mr Epenisa was sent to prison on the robbery by assault charge. At this time Ms Fagan was pregnant. Their son was born around two weeks after Mr Epenisa was sentenced to prison on the aggravated robbery and burglary charges. [10] Mr Epenisa and Ms Fagan maintained their relationship during Mr Epenisa's incarceration. For part of this time Mr Epenisa was at Mt Eden prison and Ms Fagan visited regularly. When their son was first born Ms Fagan took him to visit Mr Epenisa. When Mr Epenisa transferred to a prison away from Auckland the relationship was maintained by correspondence. When Mr Epenisa returned to Mt Eden prison Ms Fagan initially brought their son to visit him. This stopped when Mr Epenisa asked Ms Fagan not to bring their son to the prison because Mr Epenisa did not want him to remember the prison. [11] There is no evidence of any visits by Ms Fagan's older children to the prison. The only time Mr Epenisa has lived with them is from his release on 27 September 2007. At the time of the Tribunal's hearing on 9 and 10 October 2007 he had been living with them for less than two weeks.The issue on this appeal[12] In considering whether it would be unjust or unduly harsh to deport Mr Epenisa the Tribunal was required to have regard to the matters that are set out in s 105(2) of the Immigration Act. In this appeal the two of importance are "the appellant's personal and domestic circumstances" (s 105(2)(c)) and "the interests of the appellant's family" (s 105(g)). The requirement to have regard to the interests of the family recognises New Zealand's obligations under the United Nations Convention on the Rights of the Child ("UNCRC") and the International Covenant on Civil and Political Rights ("ICCPR"). These include a family's entitlement to protection as "the natural and fundamental group unit of society" (Article 23.1 of theICCPR), a child's right to such measures of protection as are required by his (or her) status as a minor, on the part of his (or her) family, society and the state (Article 24.1 of the ICCPR) and an obligation to treat the best interests of children as a primary consideration (Article 3.1 of the UNCRC). [13] An appeal against the Tribunal can only be brought on a question of law (s 117(1) of the Immigration Act). For Mr Epenisa it is contended that the Tribunal erred in law in finding New Zealand's obligations under Article 3 of the UNCRC and Articles 23.1 and 24.1 of the ICCPR were met by considering the interests of Mr Epenisa's biological son, but not considering the interests of his "step-children" (ie. Ms Fagan's older two children with whom he had been living upon his release from prison). [14] Counsel for the respondent submits that the Tribunal was not required to consider the interests of Ms Fagan's two older children as no issue affecting their rights as a family arose. She further submits that the Tribunal took into account the relationship between Mr Epenisa and these two children but did not find this to be of sufficient weight to alter its assessment.The Tribunal's decision[15] Under the heading "the appellant's personal and domestic circumstances" the Tribunal discussed Mr Epenisa's relationship with Ms Fagan. In relation to the children the Tribunal said:There are three young children living in the household including the appellant's 3 year old son. The appellant gets on well with both his partner's children by a previous marriage. Were he deported to Tonga no doubt he would miss the children, particularly his son, but it is unlikely that very close bonds have developed in the short period he has been living with them.[16] The Tribunal went on to discuss that Mr Epenisa had benefited from the emotional support of his partner but that they had not lived together long. Ms Fagan did not think she would go to Tonga with Mr Epenisa. The Tribunal noted that Mr Epenisa had not been in close contact with the remaining members of his family for some time.[17] Under the heading "the interests of the appellant's family" the Tribunal said:[44] The people closest to the appellant are his partner and son. They will be the people most affected by separation from him. The appellant has effectively pursued his own life in Auckland for the last six years, away from his father, step-mother and siblings. [45] Erica Fagan has been living with the appellant for approximately two months since his release. Hitherto, almost their entire relationship has been one of separation. The same applies to the appellant's relationship to his young son. It could not be said that the boy has developed a deep attachment to his father. The future duration of the appellant's relationship with Ms Fagan cannot be predicted from its short history. [46] Ms Fagan herself is unsure whether she would accompany the appellant to Tonga. She has strong ties to her immediate family in New Zealand from whom she derives considerable support. Were she and her son separated from the appellant, doubtless they would miss him and it would be hard for her but, given the short duration of their cohabitation and the considerable family support she has in New Zealand, it would not be unduly harsh.[18] Under the heading "conclusion on injustice or undue harshness" the Tribunal said:[51] Although his father, step-mother and siblings will miss the appellant and he may be saddened to be separated from them, given his six year separation from them already, further separation will not be harsh. It is the appellant, his partner and their son who will be the most adversely affected by his deportation. She has been very supportive of him and acts as a positive influence on his life. They have cohabited for only a short period. To accompany him to Tonga would mean separation from her close family. If she did not do so, their separation would be a hardship to the appellant and to her. [52] In considering the effect of such an interference with family unity on the appellant's wife and child, we must have regard to the rights enshrined in Article 17 and 23 of the 1966 International Covenant on Civil and Political Rights which recognises the need to protect family unity and Articles 9 and 16 of the 1989 Convention on the Rights of the Child, together with Article 3 thereof, which recognises the best interests of the child as a primary (but not the paramount) consideration in any actions concerning him or her. [53] As noted in Article 17 of the International Covenant on Civil and Political Rights, however, the right to family unity is not an unlimited one. Rather, it is restricted to protecting the family against unlawful or arbitrary interference, in respect of which the United Nations' Human Rights Committee in General Comment 16 (8 April 1988) held: " that the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances."[54] Since then, the Committee has interpreted reasonableness as requiring that any interference be proportional to the end sought and be necessary in the circumstances of any given case. See Toonen v AustraliaCommunication No. 488/192, UN Doc CCPR/C/50/D/488/1992, 4 April 1994. If it is, then no breach of those rights occurs. It is that threshold which underpins the balancing exercise which we are required to undertake. [55] The appellant has only recently begun to have a close relationship with his son. At the time of hearing the appeal, the appellant's son had enjoyed continuous involvement with his father for only one month. It is too soon to assess the nature of any bond which may exist between them. The Tribunal acknowledges that it may be hard for the appellant's son to be separated from his father and deprived of his father's daily involvement in his future upbringing. [56] The hardship must be weighed against the appellant's offending (considering both the seriousness and the considerable number of offences committed within a short period). Given the intensity of the offending and its increasingly serious nature, we do not consider that deportation of the appellant would be unjust or unduly harsh. It is proportional to the end sought (the state's right to control who may enter and reside in its territory, having regard inter alia to the security of its citizens and the maintenance of public order) and is necessary in the circumstances.[19] Under the heading "Public interest" the Tribunal considered international human rights obligations as follows:[60] The Tribunal must also take into account the public interest in New Zealand's compliance with human rights obligations and in particular Articles 17 and 23 of the International Covenant of Civil and Political Rights which recognises the need to protect family unity and Articles 3, 9 and 16 of the Convention on the Rights of the Child, recognising both the right to family unity and the best interests of the child as a primary consideration. [61] The appellant has lived apart from his birth family for the last six years. Deportation of the appellant will not impact adversely on the unity of that family group. [62] It is in respect of the appellant, his partner and their son that the public interest in preserving the family unit arises. [63] However, as noted above at [53] the rights of the family unit to be free of interference and entitled to protection and the right of children not to be separated from their parents are not without limitation. The right to be free of interference in family life is limited to freedom from unlawful or arbitrary actions of the state. Similarly, the right not to be separated from one's parents is subject to limitation (see Article 9(4) CRC) where certain lawful state actions (deportation or imprisonment) may of necessity lead to separation. In terms of Toonen, any interference must be proportional to the end sought and be necessary in the circumstances of the case. We have already found this to be the case, for the reasons given at [56] above and that no breach of the rights protected by the ICCPR and the CRC arises.[20] It can be seen that: a) The discussion of Ms Fagan's two older children comes under the heading "the appellant's personal and domestic circumstances". The discussion is about the effect on him if he is deported and the conclusion is that he would miss them. There is no discussion under this heading of the effect on the children (refer [15] above). b) When discussing "the interests of the appellant's family" the Tribunal does not refer to Ms Fagan's older two children. The discussion concerns Mr Epenisa's father, step mother, siblings, Ms Fagan as his partner, and his son (refer [17] above). c) When specifically addressing the ICCPR and the UNCRC the Tribunal refers only to Ms Fagan and their son (refer [18] above). That is also the case when discussing the family unit under the "public interest" heading (refer [19] above). [21] The Tribunal has not viewed Ms Fagan's older children as part of "the appellant's family" nor considered that Mr Epenisa was part of their family unit.Was the Tribunal required to consider the interests of Ms Fagan's two other children?Submissions[22] Counsel for Mr Epenisa submitted that the interests of Ms Fagan's older children were a primary consideration. She says that they are Mr Epenisa's stepchildren and part of Mr Epenisa's family unit. She says that the Tribunal was wrong to focus on the short period that Mr Epenisa had been living with Ms Fagan's older two children. She says that the Tribunal ought to have considered the period of time Mr Epenisa was in contact with the family unit via the mother. She says that it is a reasonable assumption that Mr Epenisa is part of "the world view" of these two children because of this contact.[23] She submits that the evidence showed that there was a "closeness" between Mr Epenisa and these two children and that the Tribunal ought to have examined the impact on them if Mr Epenisa were deported. She submits that the Tribunal ought to have made further enquiries. She submits that having raised the topic of Ms Fagan's older children the Tribunal did not go on to ask the obvious question of "how would it affect the children if you left them". Instead the subject was dropped. [24] It is submitted that it was wrong to focus on the child upon whom the impact of Mr Epenisa's deportation would be greatest. Counsel submits that the test is a cumulative one. She submits that the interests of Mr Epenisa's son were not sufficient for the Tribunal to find that Mr Epenisa's deportation was unjust or unduly harsh but, when the effect on the older two children is added, this may have been sufficient to tip the balance. [25] Counsel for the respondent submits that the Tribunal was not required to give consideration to the rights of these children. She submits that the relationship fell far short of that of stepfather and stepchildren so as to fall for consideration under "the interests of the appellant's family". She refers to the UN Human Rights CommitteeGeneral Comment 16 (32nd session, 1988) on the ICCPR which states (at para 5):5. Regarding the term "family", the objectives of the Covenant require that for purposes of article 17 this term be given a broad interpretation to include all those comprising the family as understood in the society of the State party concerned.[26] She also refers to Clayton and Tomlinson, The Law of Human Rights (Oxf Univ Press, 2000) at para 13.90 and 13.91, which discusses the meaning of "family life" as referred to in article 8 of the European Convention on Human Rights as follows:13.90 There is no precise definition of 'family life' in the Convention case law. The existence of family life does not depend on a close analysis of the complainant's circumstances but depends on proving there is a sufficiently close factual tie. The fundamental element of family life is the right to live together so that family relationships can develop naturally and that members of the family can enjoy one another's company. 13.91 The 'existence or non-existence of "family life" is essentially a question of fact depending upon the real existence in practice ofclose personal ties'. However, cohabitation between the parents or between parents and young children is not essential to prove the existence of a family. (footnotes excluded)[27] Counsel for the respondent submits that the evidence did not show close personal ties as between Mr Epenisa and the two older children. She further submits that Mr Epenisa had put the focus of his case before the Tribunal on the effect of his deportation on Ms Fagan and their son. His relationship with Ms Fagan was essentially a factual issue. Had Mr Epenisa considered the two older children to be his stepchildren then it could be expected that he would have said so even though he did not have legal representation. She submits that there was nothing in the evidence to trigger any further inquiry about Ms Fagan's two older children. She also points out that at the end of the hearing of the evidence the Tribunal gave Mr Epenisa the opportunity to put forward anything else he considered relevant when it said:Now if you think of anything in the meantime that you want to tell us you feel free to send us a letter. You write to us and tell us anything that you think you've overlooked.[28] Counsel for the respondent submits that the Tribunal correctly identified the people closest to Mr Epenisa as being Ms Fagan and their son. She submits that although the two older children were not viewed as part of Mr Epenisa's family, it is clear that the Tribunal had the two older children in mind and that there was nothing about their interests that would lead to a different conclusion however these interests might have been taken into account.The evidence[29] Mr Epenisa was asked questions by the Tribunal about the two children:Who else lives in that house um, just me, Erica and her two kids and my son. So your relationship with Erica back in 2003 would have only been for a few days before you went into prison. Would that be right? not a few days, but a few weeks. How many times have you seen your son when you were in prison oh, heaps of times when he was young. And then I told my partner not to bring him in you know. Because like when he got a little bit older I didn't want him to like remember that place. Well, when Erica was visiting you when you first went into custody he would have only been a baby wouldn't he yes. And then she didn't visit for two years yes. So you wouldn't have seen him for that two years anyway would you no. And then when she started visiting again when you were back in Auckland you asked her not to bring him is that right yes. So the time that you have spent with him, apart from when he was newborn has only just been since the 26th of September yes. How old are her other two children one's 10 and one's a bit younger, he's 8. And do they see their biological father um, Jerome, he keeps in touch with his father on the phone because he's overseas. I don't know very much about their fathers and that. Now you've been out of prison this time for 13 days since the 26 th yes Ok. So tell me what you've done in those 13 days with your boy with my boy? Yes just spent time with him. Go to the park with him. So you live in Auckland with Erica and she's got two children yes. How old are they again um, the older one is 10, he's the boy. And the girl is 8. And how do you get on with them very well. I was a bit surprised I got along with them as easy as I am with them now. They treat me like they've known me for all their life. Like they always happy all the time and that. I go with them to the park and that. Stuff like that yeah. They've been on holiday since you came out haven't they they were on school holiday when I came out yeah and I spent the holiday with them yeah. Erica's two children, Delisa and Jerome yes. You said Jerome talked to his dad yes.How about Delisa I haven't been there very long to know what's going on with Delisa and her dad. Is that the same dad or a different dad. Delisa and Jerome think its um, different dad. Different dad. Are you saying you think they're different or you know they're different I know he's different.[30] Mr Epenisa's relationship with the two children also arose in questions by the Tribunal of Ms Fagan:Does Mesake do anything in regards to um, the care of his son. Feeding, bathing, any of those sorts of things yeah, because we share the cooking duties and things like that and he serves up the food and stuff. We both do it actually. And we both cook for all the kids and stuff. For my two as well as our son together. You've got three children at home. And now you've got Mesake living there who's obviously not what you would call a role model in the past. What reassurance do you have from Mesake that he is not going to repeat his past behaviour it's just the way he's bonding. Like if you knew him before and if you know him now and even through his letters you can see he's matured more. You know, when I met him he was like nearly 19 and he's 23 now and through those years that he's been um, inside just through his letters you can see the difference in his maturity. I mean it may not be a big thing to you but from my point of view you know, having a child to him and knowing that I have two children from previous relationships and that. That, um, you know, I wouldn't exactly put any of my kids in danger if you came home and saw the way that he bonds with the kids now and you know. My two older ones got to meet him before he did this sentence. The three and a half years and um, from then until now if you came home and saw the way that my two older ones bonded with him, then like you could just see it.[31] In addition to the oral evidence Ms Fagan had submitted some "letters of support" to the Tribunal. Amongst the letters was a letter from Ms Fagan's eldest son. In this letter he says that his three year old brother will miss his Dad a lot if he is sent back to Tonga. He also says that Mr Epenisa has been good and kind to them, always told his mother to say hello to them and that he, his little sister and his little brother want Mr Epenisa to come back so that they can play and have some quality time with them. There is no date on the letter but going by the date of Ms Fagan's covering letter it appears to have been written on or before 20 September 2007 (ie. shortly before his release from prison).My view[32] Mr Epenisa's appeal to the Tribunal was focussed on his son. If Mr Epenisa believed the interests of Ms Fagan's two older children were relevant he had the opportunity to say so and to present evidence of their relationship and the impact upon them if he were to be deported. Mr Epenisa did not say that he viewed the two children as his stepchildren or that they viewed him in that way. Nor did he say that his deportation would adversely impact upon them. [33] Ms Fagan's evidence referred to how quickly they had all bonded but did not say that they had become his stepchildren and part of their family. There was no evidence that Mr Epenisa had any say in their upbringing, or on day-to-day matters affecting them, or that they relied on him in some way. Having a positive relationship with the two children, and moving into the house in which they are living, is not evidence that Mr Epenisa has become part of their family or that they are part of his. [34] The letter submitted from the eldest of Ms Fagan's children was focussed on the effect of Mr Epenisa's deportation on his half-brother. Although it refers to wanting to have some "quality time" with Mr Epenisa it does not go as far as to say that Mr Epenisa has become part of his family or that he is now like a father to him. [35] In light of this evidence the Tribunal were correct, in my view, to proceed on the basis that Ms Fagan's two older children were not part of Mr Epenisa's family. No error of law arises because the Tribunal did not address the interests of Ms Fagan's two older children as part of its consideration of "the interests of the appellant's family" or when considering the provisions of the ICCPR and the UNCRC. [36] Further, I agree with counsel for the respondent that, even if the Tribunal had expressly considered the interests of the other two children as part of the family unit, the result would have been no different. As the Tribunal noted, it was unlikely that any close bond could have been developed in the short period he had been living in Ms Fagan's home. There was no evidence that any bond had developed betweenthem via their mother's visits to the prison or correspondence. There was no evidence before the Tribunal of any real impact upon them if Mr Epenisa were deported. The Tribunal correctly identified the impact upon Ms Fagan and their son as those who would be most adversely affected. If their interests did not make Mr Epenisa's deportation unjust or unduly harsh, nor contrary to the public interest, the interests of Ms Fagan's stepchildren could not have changed the balance on the basis of the evidence.Result[37] The appeal is dismissed. There was no error of law in not considering Ms Fagan's two older children as part of the family affected by Mr Epenisa's deportation. There was no evidence that they were part of Mr Epenisa's family or he was part of theirs. In any event, had they been considered by the Tribunal in this way, the outcome would have been no different since there was no evidence that deportation would have been unjust or unduly harsh nor contrary to the public interest because of their interests. Mallon JSolicitors:Otene & Ellis, Barristers & Solicitors, PO Box 13-138, Onehunga, Auckland (ph: 09 634 3619, fax: 09 634 4125) Crown Law Office, PO Box 2858, Wellington (ph: 04 472 1719, fax: 04 473 3482)