MINISTER OF IMMIGRATION v JOOSTE CA765/2013 [2014] NZCA 23

MINISTER OF IMMIGRATION v JOOSTE CA765/2013 [2014] NZCA 23 [20 February 2014]IN THE COURT OF APPEAL OF NEW ZEALANDCA765/2013[2014] NZCA 23BETWEEN MINISTER OF IMMIGRATIONApplicantAND HENDRIK PIETER JOOSTERespondentHearing: 10 February 2014Court: O'Regan P, Ellen France and Randerson JJCounsel: C A Griffin for ApplicantRespondent in personJudgment: 20 February 2014 at 12 pmJUDGMENT OF THE COURTA Leave is granted to the applicant to appeal from the decision of the Immigration and Protection Tribunal to the High Court on the followingquestion: "Did the Immigration and Protection Tribunal correctly articulate and apply the test for an appeal against liability for deportation on humanitarian grounds set out in s 207 of the Immigration Act 2009?"B We make no award of costs.____________________________________________________________________REASONS OF THE COURT(Given by O'Regan P)[1] This is an application under s 245(1) of the Immigration Act 2009 (the 2009 Act) for leave to appeal to the High Court against a decision of the Immigration andProtection Tribunal allowing the respondent's appeal against a deportation notice.[2] The deportation notice had been served on Mr Jooste, who is a citizen of South Africa, because he had been convicted of a representative charge of obtaining a pecuniary advantage by deception, reflecting misappropriations made over a three year period, amounting to about $350,000. His conviction made him automatically liable for deportation.Appeal provision[3] Section 245 of the 2009 Act provides that a party to a matter before the Tribunal who is dissatisfied with any determination of the Tribunal as being erroneous in point of law may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.[4] In the present case the applicant, the Minister of Immigration, sought leave from the High Court but this was declined by Mallon J.1[5] In determining whether to give leave, the Court must have regard to whether the question of law involved in the intended appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.2 That test is similar to that applying to second appeals to this Court under s 67 of the Judicature Act 1908.3 In the present case, that test is being applied to a first appeal from an administrative tribunal.Relevant statutory provisions[6] The Tribunal allowed the respondent's appeal against the deportation noticeon the grounds set out in s 207 of the 2009 Act. That section provides that the Tribunal must allow an appeal on humanitarian grounds only where it is satisfied of two factors, namely:1 Minister of Immigration v Jooste [2013] NZHC 2671, [2014] 2 NZLR 257.2 Immigration Act 2009, s 245(3).3 Waller v Hider [1998] 1 NZLR 412 (CA) at 412.(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.[7] The law applying before the coming into force of the 2009 Act, the Immigration Act 1987 (the 1987 Act), provided for a different test for appeals against deportation orders on humanitarian grounds. Under s 105 of the 1987 Act, such an appeal could be allowed if the relevant tribunal was satisfied that it would be unjust or unduly harsh to deport the person from New Zealand, and that it would not be contrary to the public interest to allow that person to remain in New Zealand. Therewas no "exceptional circumstances" requirement for appeals against deportationorders on humanitarian grounds. However, there was such a requirement for appeals on humanitarian grounds against orders removing persons unlawfully in New Zealand.4 The test applied to those unlawfully in New Zealand under the 1987 Act was the same as that now applying to both residents and those unlawfully in New Zealand under the 2009 Act.[8] In summary, the change made in the 2009 Act is to extend the more stringent"exceptional circumstances" requirements for humanitarian appeals in relation todeportation orders so that the exceptional circumstances test applies to residents, in the same way as it applies to those unlawfully in New Zealand.Tribunal's decision[9] The Tribunal's decision is summarised in some detail in the judgment ofMallon J and we will not repeat that summary here.5[10] In essence, the Tribunal decided that there were exceptional circumstances arising from the fact that the deportation of the respondent would lead to his separation from his children, with whom he had a close relationship, notwithstanding4 Immigration Act 1987, s 47(3).5 At [19]–[29].that he is now separated from their mother. The older of these children came to New Zealand with the respondent and his then wife, while the younger child was born in New Zealand and is a New Zealand citizen.[11] The Tribunal considered that it would be unjust or unduly harsh to deport the respondent, particularly having regard to the best interests of his children, which was a primary, but not paramount, consideration. It considered that the degree of risk of future offending by the respondent was low and that the offending was not of such a serious nature that a low risk of recidivism was such as to make it against the public interest to allow him to remain in New Zealand.[12] The Tribunal determined that this risk be dealt with by making an order under s 212 of the 2009 Act, which provides that the Tribunal may, on allowing a humanitarian appeal, make an order suspending the appellant's liability fordeportation for a period of up to five years. The Tribunal made an order suspending his liability for deportation for four years. If the respondent does not offend during that period then, on the expiry of the four year period, his liability for deportation will be cancelled.The proposed appeal[13] The Minister sought leave to appeal in the High Court on four questions of law. Mallon J determined that the first three questions were of general and public importance but that they were not seriously arguable.6 She found that the fourth referred to a statement made by the Tribunal which was in error, but which did not affect the test that the Tribunal applied.7 She therefore refused leave on all grounds.[14] The Minister's application for leave to appeal filed in this Court set out threeproposed questions of law. These are:(a) Did the Tribunal make an error of law in holding that all deportees are permanently ineligible to return to New Zealand and consequently, erred in concluding that exceptionality is to be measured against the6 At [30]–[59].7 At [60]–[63].total pool of deportation cases, not a subset of it (such as cases involving residents)?(b) Did the Tribunal make an error of law by misdirecting itself that the test for exceptional circumstances of a humanitarian nature under s 207(1)(a) is:(i) but a threshold enquiry, with the engine room of the test being the question whether the circumstances are such as to make it unjust or unduly harsh to deport the person; and/or(ii) to find something more than routine circumstances, but which were prima facie, genuinely concerning circumstances?(c) Did the Tribunal misdirect itself by taking into account its power tosuspend liability for deportation, when determining the "unjust orunduly harsh" and "public interest" stages of the inquiry unders 207(1)?[15] The first of these is a variation on the fourth point raised in the High Court application for leave. The second and third are essentially the same as those raised in the High Court.Analysis[16] The respondent did not take issue with the High Court Judge's finding thatthe questions of law are questions that by reason of their general public importance ought to be submitted to the High Court for decision. Rather, he supported the High Court Judge's determination that the points were not seriously arguable.[17] Having considered the submissions from counsel for the Minister and the judgment of Mallon J, we have concluded that all of the points which the Minister wishes to raise are arguable points, and that, since they satisfy the statutory criteria in s 245(3), leave should be given to allow the appeal to proceed to the High Court. We accept the submission from counsel for the Minister that the decision that would bethe subject of the intended appeal has essentially set a precedent for dealing with deportation appeals applying the new test in s 207 of the 2009 Act. We agree thatthere is sufficient room for debate about the correctness of the Tribunal's approach tomake it desirable that there should be a considered assessment of the points the Minister wishes to raise on appeal, rather than the matter being left in something of a limbo.[18] We do not wish to say more about the merits given that they will be fully aired in the High Court: we think it would be undesirable for this Court to have expressed a view which a High Court Judge may regard as having some precedential effect.[19] We are also concerned that the questions of law raised by the Minister may not allow for a proper focus on matters at issue in the case, and there may be some difficulty in amending those questions of law in the High Court in an appeal for which the decision to grant leave was made by this Court if such amendment becomes necessary. We prefer, therefore, to express the points on appeal in a more generic format, which is reflected in the question of law for which we have granted leave.Result[20] Leave to appeal to the High Court is therefore granted on the question set out in the judgment of the Court. We note that Mr Jooste represented himself before us. We think it is desirable that the points that can be made in support of his case should be made by a lawyer. If Mr Jooste is not to be represented at the appeal hearing, the Court may wish to consider appointing a counsel to assist the Court.Costs[21] The Minister did not seek costs and we make no award of costs.Solicitors:Crown Law Office, Wellington, for Applicant