MINISTER OF IMMIGRATION v JOOSTE [2014] NZHC 2882

MINISTER OF IMMIGRATION v JOOSTE [2014] NZHC 2882 [19 November 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-0632[2014] NZHC 2882UNDER THE Immigration Act 2009, Section 245BETWEEN MINISTER OF IMMIGRATIONAppellantAND HENDRIK PIETER JOOSTERespondentHearing: 1 July 2014Counsel C A Griffin and L M Inverarity for AppellantC S Henry for RespondentS J M Mount as Amicus CuriaeJudgment: 19 November 2014JUDGMENT OF KATZ JThis judgment was delivered by me on 19 November 2014 at 4:00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors: Crown Law Office, WellingtonNeilsons Lawyers, AucklandCounsel: C S Henry, AucklandS J M Mount, AucklandTable of ContentsIntroduction .......................................................................................................... [1]Issues...................................................................................................................... [9]Did the Tribunal fail to properly articulate and apply the statutory test of "exceptional circumstances of a humanitarian nature"? .................... [11]The key issue .................................................................................................... [11]Section 207(1)(a)- legislative history ............................................................... [13]Previous case law on the "exceptional circumstances" test... [22]Is it appropriate to take into account contextual matters when deciding if the Tribunal erred?....................................................................................... [29]The Tribunal's analysis of the exceptional circumstances test ......................... [35]Did the Tribunal err in its articulation and application of the exceptional circumstances test?...........................................................................................[42]Did the Tribunal err in stating that resident status is important when assessing the exceptionality of Mr Jooste's circumstances? ........................... [56]Did the Tribunal err in concluding that the exceptionality of Mr Jooste's circumstances is to be measured against the total pool of deportation cases? ................................................................................................................... [62]Did the Tribunal err by taking into account its power to suspend liability for deportation under s 212 of the 2009 Act? .................................... [68]Section 212 of the 2009 Act – power to suspend deportation .......................... [68]Did the Tribunal err in taking its intention to suspend deportation into account when determining whether deporting Mr Jooste would be unjust or unduly harsh?..............................................................................................[71]Did the Tribunal err in taking its intention to suspend deportation into account when determining whether it would not be contrary to the public interest to allow Mr Jooste to remain in New Zealand?..................................[74]Summary and conclusion ................................................................................ [79]Result .................................................................................................................[82]Introduction[1] Hendrik Jooste is a South African citizen. He arrived in New Zealand in June 2005 with his wife and young daughter. The family were granted residence permits at the border, under the skilled migrant category. Mr and Mrs Jooste subsequently had another child, a son, who is a New Zealand citizen.[2] Shortly after his arrival in New Zealand, Mr Jooste commenced work as a leasing officer at Auckland City Council. He started stealing from the Council almost immediately. During the period 29 June 2005 to 25 November 2008 he stole almost $350,000 from the Council. Mr Jooste subsequently pleaded guilty to a representative charge of obtaining a pecuniary advantage by deception and was sentenced to three years' imprisonment. He became automatically liable for deportation as a result of his conviction.1 Mr Jooste was paroled on 26 July 2011, after serving 13 months of his prison term.[3] Mr Jooste's marriage ended while he was prison. His children live with his former wife and her new partner. They are happy and well settled in New Zealand and would not return to South Africa with Mr Jooste. He is therefore concerned that he will not see his children again (or at best very rarely) if he is deported.[4] Mr Jooste remains in contact with his children through a Family Court parenting order, which gives him the right to have them stay with him every second weekend, to see them after school for several hours twice a week, and to have them for alternate weeks in the school holidays. Mr Jooste has been unable to fully implement this agreement, however, as he lives in a two bedroom house with his parents. He is therefore not able to accommodate overnight stays.1 Immigration Act 2009, s 161(1)(a)(iii).[5] Mr Jooste appealed his deportation liability to the Immigration and Protection Tribunal ("Tribunal"), on humanitarian grounds. Section 207(1) of the Immigration Act 2009 ("2009 Act") sets out the test for determining such a humanitarian appeal, as follows: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.[6] The Tribunal found that Mr Jooste's close relationship with his two children (as the predominant factor) constituted exceptional circumstances of a humanitarian nature that would make his deportation unjust or unduly harsh. Further, it would not be contrary to the public interest to allow him to remain in New Zealand. Mr Jooste's humanitarian appeal was accordingly allowed.2[7] The Minister now appeals the Tribunal's decision, pursuant to leave granted by the Court of Appeal on the following broad question of law:3Did the [Tribunal] correctly articulate and apply the test for an appeal against liability for deportation on humanitarian grounds set out in s 207 of the [2009 Act]?[8] Ms Griffin advised that this is the first appeal brought by the Minister under the 2009 Act. Section 207 is an important provision, because it sets the standard for all humanitarian appeals against deportation under the 2009 Act. The Tribunal'sJooste decision is of particular concern to the Minister because, as the Court of Appeal observed in its leave decision, it "has essentially set a precedent for dealing with deportation appeals applying the new test in s 207".4 The Minister believes that2 Jooste v Minister of Immigration [2012] NZIPT 500453.3 Minister of Immigration v Jooste [2014] NZCA 23. The High Court had earlier declined to grant leave to appeal in Minister of Immigration v Jooste [2013] NZHC 2671, [2014] 2 NZLR 257.4 At [17]. Given the precedential value of any decision, the Court of Appeal recommended that an amicus curiae be appointed for the substantive appeal hearing if Mr Jooste continued to be self- represented. Such an appointment was made, although, prior to the hearing, Mr Jooste also retained Mr Henry as counsel.the Tribunal has set the bar for a finding of "exceptional circumstances of a humanitarian nature" too low.Issues[9] The Minister's submissions focussed on four particular areas in which the Tribunal is said to have erred.5 The key issues I must determine are:(a) Did the Tribunal fail to properly articulate and apply the statutory test of exceptional circumstances, resulting in a lowering of the threshold for a finding of exceptional circumstances of a humanitarian nature?(b) Did the Tribunal err in stating that resident status is important when"assessing the exceptionality of the appellant's circumstances"?(c) Did the Tribunal err in concluding that exceptionality should be measured against the total pool of deportation cases, rather than a more meaningful comparator group?(d) Did the Tribunal err by taking into account its power to suspend liability for deportation under s 212 of the 2009 Act when determiningwhether the test for an appeal under s 207(1) was satisfied?[10] I will address each issue in turn.Did the Tribunal fail to properly articulate and apply the statutory test of"exceptional circumstances of a humanitarian nature"?The key issue[11] The Tribunal set out s 207(1) in full in its decision and acknowledged that s 207(1) adopts essentially the same wording as s 47(3) of the Immigration Act 1987 ("1987 Act").6 Further, the Tribunal acknowledged that the leading authority on that wording is the Supreme Court's decision in Ye v Minister of Immigration and5 Issues (b) and (c) are inter-related and the Minister's submissions considered them together. Inmy view, however, they raise distinct issues. I have therefore addressed them separately.6 At [20].accurately summarised the relevant passages in Ye.7 Mr Henry (for Mr Jooste) andMr Mount (as amicus curiae) both submitted that this Court's inquiry in relation tothis issue should end there. The Tribunal, they submitted, cannot have erred incircumstances where it acknowledged that Ye was the leading authority, andaccurately summarised that decision.[12] Ms Griffin (for the Minister) submitted that such an approach would beoverly simplistic. She submitted that although the Tribunal correctly set out therelevant passages from Ye, it is apparent from the Tribunal's decision as a whole thatit significantly diluted the Ye test of exceptional circumstances. Further, contextualmatters (including previous Tribunal decisions and comments made by the Tribunalduring the course of the hearing) were relied upon in support of the contention thatthe Tribunal's interpretation and application of the exceptional circumstances testdiffered markedly from that set out in Ye. Rather, the Tribunal had, in effect, adoptedthe less stringent approach to resident deportation appeals that applied under the1987 Act.Section 207(1)(a)- legislative history[13] The Minister submitted that the Tribunal was led into error, in part, by itsfailure to appropriately recognise or accept that the 2009 Act introduced a morestringent test for deportation appeals by residents (as opposed to overstayers) thanthat contained in the 1987 Act.[14] Under the 1987 Act, different categories of migrant had rights of appeal todifferent tribunals, under different statutory tests. In particular, the 1987 Act drew adistinction between overstayers and residents. A resident whose permit was revokeddue to mistake, fraud or breach of conditions could appeal to the Deportation ReviewTribunal ("DRT") against that revocation. The test on appeal was whether:8it would be unjust or unduly harsh for the appellant to lose the right to be in New Zealand indefinitely.7 Jooste v Minister of Immigration, above n 2, at [21] – [22]. Ye v Minister of Immigration [2009] NZSC 76], [2010] 1 NZLR 104, at [34].8 Section 22(5).[15] A resident in Mr Jooste's position, who was subject to a deportation orderissued following a conviction for criminal offending, could appeal to the DRT toquash the deportation order. The test on appeal included an additional "publicinterest" requirement and was whether:9...it would be unjust or unduly harsh to deport the appellant from New Zealand, and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand.[16] In determining humanitarian appeals by residents under the 1987 Act, the DRT was required to have regard to a mandatory list of considerations. In relation to both types of resident appeals, these considerations included the appellant's age, the length of time they had been in New Zealand lawfully, their personal and domestic circumstances, their work record and the interests of their family. Where a residence permit was revoked under s 22 (mistake, fraud and so on) the DRT was also required to take into account the grounds on which the permit was revoked.10 In relation to residents who had criminally offended, the Tribunal was required to take into account the nature of that offence (or offences) as well as the appellant's criminal history.11 In all cases, the Tribunal was also entitled to also take into account such other matters that it considered relevant.[17] Overstayers, on the other hand, had a right of appeal against the requirement to leave New Zealand to a different body, the Removal Review Authority ("RRA"). Under s 47(3) of the 1987 Act, the test on appeal was whether:there are exceptional circumstances of a humanitarian nature that wouldmake it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.Section 47 did not specify any mandatory considerations that the RRA was required to take into account.9 Section 105(1).10 Section 22(6).11 Section 105.[18] Section 47(3), with its triple hurdles of "exceptional circumstances", "unjust or unduly harsh" and "public interest", was the strictest appeal test of the three contained in the 1987 Act. This was consistent with the overall scheme of the 1987 Act, which was least favourable to those unlawfully in New Zealand.[19] The 2009 Act significantly overhauled New Zealand's immigration law. Its statutory purpose is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.12 The 2009 Act removed the distinction between "removal" of overstayers, "revocation of residence"for fraud, and "deportation" of residents who had committed criminal offences."Deportation" is now the term used to refer to all compulsory departures from New Zealand. The somewhat fragmented approach in the 1987 Act has been replaced with a centralised regime for all appeals against deportation liability. A new single test for humanitarian appeals against deportation was introduced.13 It is virtually identical to s 47(3) of the 1987 Act, being the more stringent test that previously applied only to overstayers.[20] As the Court of Appeal observed in its leave decision, the plain intention of the 2009 Act in re-enacting the s 47(3) test (in the new s 207) for all humanitarian appeals against deportation liability was to raise the bar for a humanitarian exception for residents:14In summary, the change made in the 2009 Act is to extend the more stringent"exceptional circumstances" requirements for humanitarian appeals in relation to deportation orders so that the exceptional circumstances test applies to residents, in the same way as it applies to those unlawfully in New Zealand.12 Section 3.13 Section 207.14 Minister of Immigration v Jooste, above n 3, at [8]. That the threshold for resident deportation appeals was being raised in the 2009 Act was also noted in various official documents preceding the passage of the Act, including the Regulatory Impact Statement to the Immigration Bill 2007 (132-1) at 58 and the Department of Labour's Immigration Bill 2007 (132-1) (Select Committee Report) at [1226]. The increased threshold for resident deportation appeals was raised as a concern by several submitters to the Select Committee, but ultimately no changes were recommended.[21] Parliament has removed the distinction that formerly existed between residents and overstayers, under which residents had a preferred position. Residents who commit qualifying criminal offences will now automatically lose their right of residence, unless they are found to come within the narrow humanitarian exception in s 207.Previous case law on the "exceptional circumstances" test[22] There are two limbs to s 207(1). The first limb (s 207(1)(a)) requires the Tribunal to consider whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for an appellant to be deported from New Zealand. I will refer to that as the humanitarian limb. If that limb is satisfied, then the Tribunal must consider the second limb (s 207(1)(b)), which is whether"it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand". I will refer to that as the public interest limb. The main focus of this appeal is the humanitarian limb.[23] Given that s 207(1)(a) is almost identically worded to s 47(3) of the 1987 Act,it was common ground that previous case law on the correct interpretation of thehumanitarian limb of s 47(3) of the 1987 Act is directly relevant to this appeal.[24] Courts at all levels have accepted that the s 47(3) test was a "difficult one to meet"15 and was set at a "deliberately set at a high level".16 In Zanzoul v RemovalReview Authority, Dobson J noted that the humanitarian limb of s 47(3) constituted a"high threshold" as "the basis for a very narrow exception to an overall policy ofremoving persons who are unlawfully in New Zealand".17 In Patel v RemovalReview Authority, the Court of Appeal held s 47(3) to be a "stern test", expressed by"stringent statutory wording":18The stringent statutory wording, "exceptional circumstances of a humanitarian nature unjust or unduly harsh", using strong words imposes a stern test. In its natural usage, "exceptional circumstances" sets a high threshold necessarily involving questions of fact and degree.15 Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [150].16 Ye v Minister of Immigration, above n 7, at [32].17 Zanzoul v Removal Review Authority, above n 15, at [162].18 Patel v Removal Review Authority [2000] NZAR 200 (CA) at 204.[25] The approach taken in these cases was affirmed by the Supreme Court inYe v Minister of Immigration.19 Although all members of the Court concurred in the outcome of that appeal, their reasoning differed on one particular issue, namely whether the humanitarian limb of s 47(3) describes one composite test or two sequential considerations. The first interpretation is that the presence of exceptional circumstances necessarily demonstrates injustice or undue harshness. The second interpretation requires a separate assessment of whether the exceptional circumstances that have been found to exist make it unjust or unduly harsh to remove a person. The majority preferred the second, sequential, approach whereas the Chief Justice favoured the first, composite, approach.20[26] As for the meaning of the phrase "exceptional circumstances", the majority observed that it is important to consider the s 47(3) test in its statutory context, including the clear policy decision on the part of Parliament that overstayers must leave New Zealand.21 The Court held that the appropriate threshold for a finding of exceptional circumstances was as follows:22That 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 exceptionrather than the rule.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.(Emphasis added)[27] The Court noted that 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".2319 Ye v Minister of Immigration, above n 7, at [32].20 Compare [7] per Elias CJ and [30], [37]-[38] per Tipping J (for Blanchard, Tipping, McGrath and Anderson JJ).21 At [33].22 At [34]. The majority cited in support the Court's earlier decision in Creedy v Commissioner of Police [2008] NZSC 31, [2008] 3 NZLR 7 at [31] – [32].23 At [36].[28] The final aspect of Ye that is relevant in this case (although it was not a direct focus of appeal) is its confirmation of the principle that the Act should be interpreted in a way that is consistent with New Zealand's obligation to observe the requirements of applicable international instruments, including Article 3(1) of the United Nations Convention on the Rights of the Child, which provides that in all actions concerning children by public and administrative authorities the best interests of the child shall be "a primary consideration". The Court noted, however, that aprimary consideration does not mean the primary consideration, much less the paramount consideration. Requiring the best interests of children to be a "first and paramount consideration":24would not be consistent with the policy objectives which must bereconciled in cases of the present kind, as evident, in particular, from the terms of s 47(3).Is it appropriate to take into account contextual matters when deciding if the Tribunal erred?[29] Before turning to consider the specific parts of the Tribunal's decision that were said to reflect an erroneous approach, I will first briefly address several"contextual" matters relied on by Ms Griffin in support of the Minister's appeal.[30] Ms Griffin advised that an analysis of the Tribunal's decisions on resident deportation appeals under the 2009 Act reveals that exceptional circumstances have been found in approximately 85 per cent of such cases. She submitted that this provides further evidence that the Tribunal is applying a relatively low threshold to the exceptional circumstances test. The vast majority of appeals, she submitted, cannot be "well outside the normal run of circumstances" (adopting the Supreme Court's test of exceptionality in Ye).[31] Ms Griffin also referred in some detail to the transcript of the Tribunal hearing. She noted that counsel for the Minister had expressly submitted that the inclusion of the "exceptional circumstances" element into s 207 (mirroring s 47(3)) had made the test more difficult for resident appellants. The Tribunal members did not accept that proposition. Further, the Chair queried whether "the new Act is really24 At [24].doing anything significantly different to the old Act" and suggested it "may not be difficult to find" cases that meet the Supreme Court's test of "out of ordinary" or"not routine". The Chair also indicated a preference for the Chief Justice's minority view in Ye (the composite rather than sequential approach to the humanitarian limb)and stated that the focus of the enquiry under the humanitarian limb should be on whether deportation is unjust or unduly harsh (which would arguably not be consistent with the sequential approach mandated by the majority in Ye).[32] Some of the oral comments made by Tribunal members during the hearing clearly reflected an erroneous view of the law. For example, the inclusion of the"exceptional circumstances" requirement in s 207 has undoubtedly made the test for a humanitarian appeal more difficult for residents.25 The new Act is therefore doing something "significantly different" to the old Act, at least so far as residents are concerned. Further, the Tribunal is clearly bound by the majority decision in Ye and must resist any temptation to apply Ye in a way that reflects the minority rather than majority approach to s 207, where the two approaches differ.[33] I accept Mr Mount's submission, however, that little weight can be given to what Tribunal members said during the oral hearing. It is the decision itself, rather than the comments of any individual member during oral argument which must be evaluated. It is not unusual for a decision maker to test propositions during the course of oral argument and to challenge counsel's submissions. Comments exchanged during oral argument may or may not reflect the Court or Tribunal's ultimate conclusions, which will be set out in its written judgment or decision.[34] I therefore now turn to consider the particular aspects of the Tribunal'sdecision which, the Minister submitted, demonstrated that it had failed to properly apply the test for exceptional circumstances as set out in Ye.25 As noted by the Court of Appeal in its leave decision in this case: Minister of Immigration v Jooste, above n 3, at [8].The Tribunal's analysis of the exceptional circumstances test[35] The Tribunal acknowledged that the leading authority on the correct interpretation of s 207 is the Supreme Court's decision in Ye and accurately summarised the relevant passages. The Minister alleges, however, that the Tribunal significantly diluted the Ye test elsewhere in its decision and then applied its own, less stringent, test to the facts of Mr Jooste's case.[36] The first passage relied on by Ms Griffin was at the outset of the Tribunal'sdecision, where it stated:[2] The crux of the appeal is whether the compassionate factors (predominantly the permanent separation of the appellant from his two young children) outweigh the gravity of the offending (obtaining by deception).[37] Then, relating back to this "crux of the appeal", the Tribunal later stated that:[23] In determining whether the exceptional circumstances of a humanitarian nature would make it unjust or unduly harsh for the appellant to be deported, the Tribunal must weigh the gravity of the offending, and any other offending of which the appellant has been convicted, against the compassionate factors favouring the appellant remaining in New Zealand. See Galanova v Minister of Immigration [2012] NZIPT 500426, at [47]-[50].[38] After some further discussion, including a review of the key changes brought about by the 2009 Act, the Tribunal then stated:[47] Finally, sight must not be lost of the fact that exceptionality is 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. It is a clearly a threshold intended to prevent those with routine circumstances from arguing injustice or undue harshness. The bar is not, however, set so high as to prevent those who have, prima facie, genuinely concerning circumstances from having them held up against the backdrop of their offending, in order to determine whether deportation would be unjust or unduly harsh. Nor is it set so high that a finding of exceptional circumstances of a humanitarian nature would be tantamount to a finding of injustice or undue harshness. In extending the former 'removal'test to the deportation of residents for serious crime, Parliament must have contemplated that a finding of exceptional circumstances of a humanitarian nature might still, when held up against the offending (and any other adverse factors), not render deportation unjust or unduly harsh.[39] Applying these observations to the facts of Mr Jooste's case, the Tribunal found that he remained a strong parental figure in his children's lives, notwithstanding that their mother had formed a new relationship. Although the permanent separation of Mr Jooste from his children was identified as the"predominant" humanitarian factor, the likely permanent separation of the children from their grandparents, who would return to South Africa, was also seen as relevant.26 The Tribunal concluded that:[63] As a resident, the appellant currently has the right to remain in close contact with his children and to play a meaningful and valuable role in their development. They are at ages at which his long-term contribution to their well-being is likely to be significant. If the appellant is deported, the children (New Zealand residents) will remain in New Zealand and the child/parent relationship will be substantially severed. The children will lose, permanently, any close physical contact with their father (and he too, with them).[64] Weighing the above, the Tribunal is satisfied that there are exceptional circumstances of a humanitarian nature.[40] Weighing the relevant exceptional humanitarian circumstances against Mr Jooste's offending, and taking into account its intention to conditionally suspend liability for deportation for four years, the Tribunal was satisfied that Mr Jooste's exceptional circumstances of a humanitarian nature would make it unjust or unduly harsh for him to be deported from New Zealand.27[41] Finally, weighing the low risk of re-offending and the emotional harm to Mr Jooste's two children if he was deported, and having regard to international treaty obligations relating to family unity and the best interests of children, the Tribunal concluded that it would not be contrary to the public interest to allow him to remain in New Zealand.2826 Jooste v Minister of Immigration, above n 2, at [50], [51], [56], [68], [73]. It appears that theTribunal may have overlooked that Mr Jooste's parents' application for residence had alreadybeen declined by Immigration New Zealand on 26 July 2010 and that decision was confirmed on appeal to the Tribunal: Re BI (Parent) [2011] NZIPT 200167, 30 June 2011 on the basis that Mr Jooste was not able to sponsor his parents and there were no "special circumstances"warranting residence being granted as an exception. Accordingly, even if Mr Jooste is not deported, it is a real possibility that his parents will need to return to South Africa.27 At [74], [91], [92].28 At [86], [89] – [92].Did the Tribunal err in its articulation and application of the exceptional circumstances test?[42] Mr Mount and Mr Henry both submitted that the Tribunal's approach, looked at in full and in context, was an orthodox application of the statutory test as interpreted by the Supreme Court in Ye, which the Tribunal placed at the forefront of its analysis. I have been persuaded, however, that the Tribunal erred by failing to correctly and consistently articulate and apply the Ye test of "exceptional circumstances," for the reasons I set out below.[43] As an initial observation, I note that some concern has been expressed in previous decisions of this Court regarding the threshold for "exceptional circumstances" being applied by the Tribunal. In Close v Immigration and Protection Tribunal, Collins J noted he "may have struggled to reach the same conclusion" as the Tribunal (which had concluded that Mr Close established qualifying exceptional circumstances) by reference to the test in Ye.29 In Pelu v Minister of Immigration, Ellis J observed "[t]here is support for the contention that there is a question of law arising from what is arguably the Tribunal's wholesale incorporation of [the mandatory considerations in] s 105(2) into s 207(1)(a) (evident in both Ms Pelu's case and others)". Further, "it is possible to see how the incorporation of the old s 105 considerations into an exceptional circumstances analysis might lead the Tribunal into error".30 Most recently, in Allada v Immigration and Protection Tribunal, Asher J observed that "in Jooste there were arguably glosses put on the reasoning of the Supreme Court in Ye [regarding exceptional circumstances]".31 His Honour declined to follow Jooste as a result, noting that the decision was under appeal.[44] Turning now to the specific passages in the Tribunal's Jooste decision that are said to reflect an erroneous approach, Ms Griffin first relied on the two passages in which the Tribunal made observations to the effect that it saw its role as being to29 Close v Immigration and Protection Tribunal [2013] NZHC 2692 at fn 29. In Close v Minister of Immigration [2013] NZIPT 600028 at [40], [46], [51], the Tribunal found exceptional circumstances based on Mr Close being a resident facing separation from his partner and a decision by the NZ Chiropractic Board to continue to let him practice.30 Pelu v Minister of Immigration [2014] NZHC 600 at [21]; referring to the Court of Appeal decision on leave in Minister of Immigration v Jooste, above n 3.31 Allada v Immigration and Protection Tribunal [2014] NZHC 953 at [41].weigh the "gravity of the offending" against "compassionate factors" favouring Mr Jooste remaining in New Zealand.32 Indeed, the Tribunal stated at the outset of its decision that it saw this as the "crux" of the appeal. In a similar vein, the Tribunal stated that the "exceptional circumstances test" was simply "a threshold intended to prevent those with routine circumstances from arguing injustice or undue harshness"and that those with "genuinely concerning circumstances" were entitled to have"them held up against the backdrop of their offending".[45] In my view such comments reflect an erroneous view of the exceptional circumstances test. They effectively equate the stringent statutory test of"exceptional circumstances of a humanitarian nature" with "compassionate factors", circumstances that are more than simply "routine", or "genuinely concerning circumstances". The latter phrases fail, by a significant margin, to adequately capture the high threshold for a finding of exceptional circumstances of a humanitarian nature, as articulated in Ye and the other cases I have referred to.[46] Parliament has mandated that it is only where humanitarian circumstances areexceptional that the statutory threshold will be met. As McGechan J observed inNikoo v Removal Review Authority:33Circumstances which may cause difficulty, hardship and emotional upset to persons the subject of removal orders, or those associated with them, will not suffice to meet the requirement unless the circumstances themselves or their consequences can legitimately be characterised as exceptional.[47] The primary humanitarian factor identified by the Tribunal in Mr Jooste's case was his separation from his children if he were deported. Unfortunately, cases involving the separation of parent and child are not unusual in the deportation context.34 Family separation through deportation will often cause "difficulty,hardship and emotional and upset" – but that in itself is not sufficient. Although such difficulties, hardship and emotional upset will clearly be "compassionate32 At [2] and [23].33 Nikoo v Removal Review Authority [1994] NZAR 509 (HC) at 514.34 See for example Mwai v Removal Review Authority [2000] NZAR 206 (CA) at 212, noting theRemoval Review Authority's view separation of parent and child potentially not sufficient alone;Ye v Minister of Immigration [2009] 2 NZLR 596 (CA) at [407] – [410]; compare Zanzoul v Removal Review Authority, above n 15, at [130] – [140]; Esau v Minister of Immigration HC Wellington AP320/98, 5 October 2000 at [53]; O'Brien v Immigration and Protection Tribunal[2012] NZHC 2599, [2012] NZAR 1033 at [15], [30]-[31].circumstances" that may well be of "genuine concern" something more is required for a finding of exceptionality.[48] As Simon France J observed in O'Brien v Immigration and Protection Tribunal, the focus must be on whether there is something in the child's particular circumstances that go beyond those inevitably involved in any forced separation. InO'Brien, psychological evidence established particular risks and significant developmental impairment to the child if the appellant (who acted as a "buffer"between his daughter and certain identified risks) was removed from family home.35Similarly, if the impact of family separation is viewed from the parent's viewpoint(as opposed to the child's) there must again be something that takes the case "welloutside the normal run of deportation cases". Obviously, in some cases it may be a combination of circumstances that result in an overall finding of exceptionality. In this case, however, the predominant humanitarian circumstance identified by the Tribunal was that of family separation.[49] The Tribunal's view that it is possible (and indeed appropriate) to proceed from a finding that there are "genuinely concerning" or "compassionate"circumstances straight to the question of whether those circumstances would make deportation unjust or unduly harsh effectively removes the requirement for exceptionality from the analysis altogether. Such an approach risks conflating the separate (and sequential) inquiries regarding exceptionality and injustice or undue harshness, which was expressly rejected by the majority in Ye.[50] I also accept the Minister's submission that the Tribunal is, in effect, continuing to take the same, less stringent, approach to resident deportation appeals as was provided for by s 105 of the 1987 Act. Section 105 did not include a threshold requirement of exceptional circumstances. The approach taken under s 105 of the 1987 Act was summarised in Oto v Minister of Immigration as follows:36There had to be a balancing exercise, weighing the seriousness of the offending giving rise to the deportation order and any other offending with35 O'Brien v Immigration and Protection Tribunal, above n 34, at [15], [30]-[31].36 Oto v Minister of Immigration HC Wellington CIV-2008-485-2183, 13 March 2009 at [28]. See also the often cited authority of M v Minister of Immigration HC Wellington AP84/99, 17 August 2000 at [9].the compassionate factors favouring the appellant remaining in New Zealand, having particular regard to the matters set out in s 105(2).[51] This mirrors the approach that the Tribunal has articulated in this case (using very similar wording). Continuing to follow an approach to resident deportation appeals that was appropriate in relation to s 105(2) of the 1987 Act overlooks that the clear Parliamentary intention was to raise the bar for appeals against deportation by residents in the 2009 Act, by including an additional requirement (not present in s 105(2)) that the relevant humanitarian circumstances must be "exceptional".[52] The Minister also expressed concern at the Tribunal's statement that the"exceptional circumstances" test is "but a threshold inquiry" 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".37[53] No issue can be taken with referring to the exceptional circumstances test as a"threshold inquiry". Any appeal must fail at the first hurdle if there are no"exceptional circumstances" of a humanitarian nature. The significance of the initial threshold inquiry should not be minimised, however. Given the stringent nature of the "exceptionality" test, as articulated in Ye, the initial threshold is a high one. One would expect that only a minority of cases would progress to the "unjust or undulyharsh" stage of the inquiry.[54] Exactly what the Tribunal intended by its comment that the "engine room" of the test is whether the circumstances are such as to make deportation unjust or unduly harsh is not entirely clear. Such comments, however, appear to be consistent with an overall approach by the Tribunal of lowering the bar for a finding of exceptional circumstances to allow any case involving "compassionatecircumstances" or "genuinely concerning circumstances" into what it sees as the"engine room" of the s 207 test – namely whether those particular circumstances make deportation unjust or unduly harsh. Such an approach not only fails to apply the test of exceptionality as articulated in Ye, but again risks conflating the two stages of the inquiry (also contrary to the majority approach in Ye). The correct approach is for the Tribunal to first consider whether exceptional circumstances of a37 At [47].humanitarian nature exist. Only if the exceptionality threshold is met can the Tribunal then proceed to consider whether those particular exceptional circumstances would make deportation unjust or unduly harsh.[55] Finally, I note that, although the Tribunal identified Mr Jooste's relevanthumanitarian circumstances, it did not clearly articulate why it considered thosecircumstances to be exceptional in terms of the Ye test. In what ways did MrJooste's case give rise to humanitarian circumstances that were outside the normalrun of deportation cases? In what respects are his particular circumstances "beyondthose inevitably involved in any forced separation?38 Some circumstances may be soclearly exceptional that further explanation as to how they meet the exceptionalitytest as articulated in Ye is not necessary. Most cases, however, will require someexplanation as to why the relevant circumstances (or combination of circumstances)are seen as exceptional. Mr Jooste's case falls into the latter category.Did the Tribunal err in stating that resident status is important when assessing the exceptionality of Mr Jooste's circumstances?[56] The Minister submitted that the Tribunal erred in concluding that resident status is "important" when "assessing the exceptionality of the appellant's circumstances".39 The Tribunal's reasons for this conclusion were as follows:(a) Resident status carries with it a number of rights, including the right to remain, to enter and leave New Zealand. Residence also includes the right for Mr Jooste to stay in close contact with his children. If he was deported, he would lose these rights.40(b) Resident status is also relevant to the "exceptionality of other factors, including the question of separation from his children who are also residents and the degree to which he is well-settled in this country".41(c) Thus, while resident status is not itself an exceptional humanitarian circumstance, it is influential.4238 O'Brien v Immigration and Protection Tribunal, above n 34 at [15], [30]-[31].39 At [28].40 At [28] and [63].41 At [29] and [45] .[57] To the extent that the Tribunal suggests that residence status is important in its own right, because of the greater "rights" attached to residency, I respectfully disagree. On the other hand, it is uncontroversial that, in many cases, residents (due in part to the rights and expectations associated with residency) will have become more fully integrated into New Zealand society. They will often have formed closer ties or attachments to New Zealand than those who are in the country unlawfully. It necessarily follows that a resident may be able to establish "exceptional circumstances" more readily than a non-resident.[58] There is a clear policy in the 2009 Act of deporting residents who commitcriminal offences, subject only to the narrow humanitarian exception in s 207.Parliament has rejected the lower threshold that previously applied to deportationappeals by residents in favour of applying a uniform humanitarian appeal test to bothresidents and non-residents. In such circumstances there is no principled reason whyan appellant's "legal rights as a resident" should be ascribed any additional weightunder s 207(1).[59] I note that my conclusion that residence status is not an important factor in its own right is consistent with the view expressed by Gendall J in Guo v Minister of Immigration.43 In that case Mr Guo sought leave to appeal a s 207(1) decision of the Tribunal. Gendall J dismissed an argument that the Tribunal had erred in failing to consider Mr Guo's permanent resident status when determining whether the s 207(1)(a) test was satisfied. The High Court declined leave to appeal and concluded that the fact that Mr Guo was a permanent resident "does not provide him with any greater consideration here".44 A subsequent application to the Court of Appeal for leave to appeal was also declined.45 In response to the submission that the Tribunal ought to have afforded the appellant greater consideration on the basis of his status as a permanent resident, the Court of Appeal stated that:In fact, the Tribunal was clearly well aware of [the appellant's] close association with New Zealand and we see no room for any "greater consideration".42 At [28] – [29], [44] – [46].43 Guo v Minister of Immigration [2014] NZHC 804.44 Guo v Minister of Immigration, above n 43, at [86].45 Guo v Minister of Immigration [2014] NZCA 513.[60] This is consistent with my view that the relevant humanitarian factor is the closeness of an appellant's association with New Zealand, not their residence status per se.[61] For completeness, I note that one area in which there is a notable differencebetween the position of residents and non-residents is that resident criminaloffenders are permanently prohibited from re-entry into New Zealand.46 Overstayersdeported under s 154 are prohibited from re-entry only for either two or five yearsand until the costs of deportation are paid.47 Accordingly, the consequences ofdeportation are potentially more severe for residents than overstayers (depending tosome extent on the closeness of the deportees ties to New Zealand). While this is adeliberate statutory policy (reflecting that residents are only liable for deportation infairly serious circumstances) in some cases the more severe consequences ofdeportation for residents may be relevant to the overall assessment of exceptionalhumanitarian circumstances.Did the Tribunal err in concluding that the exceptionality of Mr Jooste's circumstances is to be measured against the total pool of deportation cases?[62] The Tribunal recognised that the concept of exceptionality "presupposes that a pool, or group, exists against which the exceptionality is to be measured – the'normal run' or 'the rule'".48 The Tribunal then went on to define the relevant pool as "all deportation cases", rather than a subset of them, such as "residents convicted of a qualifying crime or a comparison across all categories of deportation for residents".49[63] The Minister submitted that the comparator pool or group adopted by theTribunal is too wide to be meaningful, at least in the context of deportation ofresidents. Rather, the Tribunal should identify, in a particular case, a meaningfulcomparator group, "whether that is defined by migrant category or some otherrelevant distinction". In Mr Jooste's case the Minister submitted that the relevant46 Sections 161 and 179.47 Sections 154, 179 and 180.48 At [37].49 At [44].comparator group was resident appeals to the Tribunal, rather than all deportation cases.[64] In support of its view that the relevant comparator pool should be"all deportation cases", the Tribunal stated that under the 2009 Act all deportationshave "the same outcome of a lifetime ban" from New Zealand.50 It was commonground on appeal that this was an error of law on the part of the Tribunal. Theconsequence of deportation for residents is a lifetime prohibition on re-entry,whereas overstayers are prohibited from re-entry only for a period of either two orfive years.[65] The Minister submitted that the Tribunal's error was material, because itcontributed to its "failure to compare like circumstances with like". Given that theconsequences of deportation are different for different groups, residents should beconsidered in their own separate "pool" for the purposes of assessing exceptionality.[66] The Tribunal carefully analysed this issue. Its starting point was the statutory scheme which, it noted, has created a single test dealing with a single pool of people subject to deportation, albeit for different reasons.51 The Tribunal went on to point out that selecting subsets of this group could result in arbitrariness.52 The Tribunal concluded that there was no logical reason to impose such an arbitrary restriction on the statutory test.53 Further, the Tribunal highlighted the statistical infrequency of deportation appeals by residents - only 14 per cent of the 2293 appeals received by the DRT, the RRA and the Tribunal since July 2006 were from residents.54[67] The almost infinite range of humanitarian circumstances precludes any detailed prescription as to what the appropriate comparator group is in any given case. It may well differ from case to case. In this case, however, I have not been persuaded that the Tribunal erred in approaching Mr Jooste's appeal on the basis that the appropriate comparator group was all deportation cases. It would be artificial, in50 At [44]. The Tribunal makes further reference to its erroneous assumption that all deportees are permanently prohibited from returning to New Zealand at [33] of its decision.51 At [42] .52 At [43].53 At [44].54 At [35]-[36].my view, to assess the exceptionality of family ties against a resident comparator group in some cases (where the appellant is a resident) and against a non-resident comparator group in other cases (where the appellant is a non-resident). This would potentially result in divergent jurisprudence for different migrant categories and be inconsistent with the scheme of the 2009 Act, which adopts a single statutory test for all humanitarian appeals against deportation.Did the Tribunal err by taking into account its power to suspend liability for deportation under s 212 of the 2009 Act?Section 212 of the 2009 Act – power to suspend deportation[68] Section 212(1) provides the Tribunal with the power to suspend anappellant's liability for deportation for up to five years. This is a new power, whichdid not exist in the 1987 Act. Section 212(1) is located within a group of provisions(at ss 209 – 216) headed "Orders on determination of appeal". It provides:On allowing any humanitarian appeal the Tribunal may, in the case of a resident or permanent resident, make an order suspending the appellant's liability for deportation for a period not exceeding 5 years, subject to such conditions (if any) as the Tribunal determines.[69] The suspension power is in effect a form of probationary period that can be imposed on a resident otherwise liable for deportation.55 The power is only available for resident humanitarian appeals.[70] The Tribunal ordered the suspension of Mr Jooste's liability for deportation for four years from the date of its decision, on the condition that he is not convicted of any similar misappropriation offence committed during that period. The Tribunal considered that its intention to suspend Mr Jooste's liability for deportation was relevant to both whether deportation would be "unjust or unduly harsh" and whetherit would be contrary to the public interest to allow Mr Jooste to remain in New Zealand. The Minister submitted that the Tribunal erred in both respects.55 At the end of the suspension period, and subject to compliance with any conditions imposed bythe Tribunal, the Minister must cancel the resident's liability for deportation: Immigration Act2009, s 213(5) – (6).Did the Tribunal err in taking its intention to suspend deportation into account when determining whether deporting Mr Jooste would be unjust or unduly harsh?[71] Having found that exceptional humanitarian circumstances existed, the Tribunal then turned to consider the second limb of s 207(1)(a), namely whether deportation would be unjust or unduly harsh. It concluded as follows:56Weighing the offending (serious, but not at the upper end of the scale of seriousness) against the exceptional humanitarian circumstances (notably the detrimental effect on the appellant's children as a result of the permanent loss of close contact with him), the Tribunal is satisfied that it would be unjust or unduly harsh for the appellant to be deported from New Zealand.In reaching this conclusion, we have had regard to the suspension of deportation we intend to order at the conclusion of this decision.(Emphasis added)[72] Mr Mount and Mr Henry both struggled to articulate how any suspension of deportation could be relevant to the assessment of whether deportation was unjust or unduly harsh, and ultimately accepted that it probably was not. They submitted, however, that any error was immaterial.[73] I am satisfied that the Tribunal erred in taking into account its intention to suspend Mr Jooste's deportation when considering the unjust or unduly harsh limb of s 207(1)(a). The humanitarian limb requires the Tribunal to consider whether an appellant's exceptional humanitarian circumstances would render deportation unjust or unduly harsh. The Tribunal's intention to suspend deportation was not relevant at that stage of the inquiry.Did the Tribunal err in taking its intention to suspend deportation into account when determining whether it would not be contrary to the public interest to allow Mr Jooste to remain in New Zealand?[74] The key public interest factors identified by the Tribunal were the gravity of Mr Jooste's offending, balanced against what appeared to be his low risk of reoffending and the importance of family unity. The Tribunal recognised that there was some degree of uncertainty as to the actual re-offending risk and commented that:5756 At [74].57 At [86]....the absence of any formal assessment of the appellant by a psychologist trained in the criminogenic field does leave us with a degree of uncertainty as to the actual risk the appellant poses. That uncertainty can be addressed by the order suspending deportation which we intend to make at the conclusion of this decision. If the Tribunal is later to find that the conditions attached to the suspension order have been breached, the appellant will be liable for deportation without further right of appeal. We are satisfied that the real and immediate risk to him of being permanently separated from his children is a sufficient deterrent to render the risk of recidivism low.(Emphasis added)[75] The Minister submitted that recourse to the suspension power in s 212(1) is intended to follow the determination of the two limbs of s 207(1) and not inform it. This is apparent in the heading of the section "Orders on determination of appeal".Taking the Tribunal's intention to suspend deportation into account under the publicinterest limb of the s 207(1) test was said not to reflect the intended relationshipbetween s 207(1) and s 212(1). Further, it risked diluting the mandatory standard fora successful appeal set out in s 207(1).[76] The public interest limb enables matters such as the risk of reoffending, the impact on victims and the interests of the broader New Zealand community to be taken into account in the overall assessment. Ultimately, the Tribunal must determine whether the adverse consequences of deportation for an appellant (arising out of his or her humanitarian circumstances) are outweighed by broader public interest considerations.[77] Given that risk of re-offending is a significant public interest factor, the Tribunal did not err, in my view, by taking into account that its intention to suspend deportation would potentially ameliorate some of the uncertainty that surrounded Mr Jooste's re-offending risk.[78] I have not overlooked the Minister's "floodgates" argument. In my view, however, the ability to suspend deportation is likely to have public interest implications in a fairly limited number of cases. Using the suspension power to manage residual offending risk is a fairly blunt tool, of very limited duration. It is only in a fairly limited pool of cases, such as those involving low level or first time offenders, or offending that is otherwise out of character, that the suspension power is likely to assume any real significance.Summary and conclusion[79] The question I am required to determine in this appeal is whether the Tribunal correctly articulated and applied the test for an appeal against liability for deportation on humanitarian grounds set out in s 207 of the 2009 Act. The answer to that question is "no", for the following reasons:(a) The Tribunal failed to consistently articulate and apply the statutorytest of "exceptional circumstances" as set out by the Supreme Court inYe v Minister of Immigration. Rather than requiring that the relevant humanitarian circumstances be "well outside the normal run of circumstances" found in deportation cases generally and "truly an exception rather than the rule," the Tribunal lowered the bar for a finding of exceptional circumstances by concluding that "genuinely concerning circumstances", "compassionate circumstances" or circumstances that are more than "routine" would be sufficient to meet the exceptional circumstances test. (Refer [22] to [28] and [42] to [55] above.)(b) The Tribunal failed to have proper regard to the fact that the 2009 Acthas resulted in a more stringent deportation regime for residents thanwas previously the case under the 1987 Act. Rather, the Tribunalappears to have continued to apply the same approach to residentdeportation appeals that was applied by its predecessor under the lessstringent test in s 105 of the 1987 Act. (Refer [13] to [21], [32] and[50] to [51] above).(c) By lowering the threshold for a finding of exceptional circumstancesand focussing (as the "engine room" of the test) on whetherdeportation would be unjust or unduly harsh, the Tribunal appears to have conflated the two stages of the s 207(1)(a) inquiry. In accordance with the approach of the majority of the Supreme Court inYe, the Tribunal is first required to decide if it is satisfied that exceptional circumstances of a humanitarian nature exist. Only if it is so satisfied can the Tribunal then embark on the next stage of theinquiry, which is whether those circumstances (and those circumstances only) would make deportation unjust or unduly harsh. (Refer [49] and [52] to [54] above).(d) The Tribunal erred in finding that resident status was important when assessing the exceptionality of Mr Jooste's circumstances, due to the greater rights attached to residence. Attributing separate or additional weight to such rights runs contrary to the statutory scheme of the 2009 Act. Rather, the focus of the humanitarian inquiry should be on the nature and intensity of a person's ties to New Zealand, the consequences of deportation, and so on. Such factors may often be weightier for residents than non-residents, although that will not always be the case. (Refer [56] to [61] above).(e) The Tribunal erred in taking into account its intention to suspend Mr Jooste's deportation when considering the unjust or unduly harsh limb of the s 207(1)(a) test. (Refer [71] to [73] above).[80] I have found that the Tribunal did not err in the following respects:(a) The Tribunal did not err in concluding that the "exceptionality" of Mr Jooste's circumstances should be measured against the total pool of deportation cases, rather than just against other residents. (Refer [62] to [67] above).(b) The Tribunal did not err in finding that its intention to suspend deportation was relevant to the public interest limb of s 207. The risk of re-offending is a significant public interest factor. It was open to the Tribunal to conclude that suspending deportation for four years would ameliorate some of the uncertainty around Mr Jooste's re-offending risk. (Refer [74] to [78] above).[81] I have also made a number of general observations that will be relevant to theTribunal's reconsideration of Mr Jooste's appeal. For example, I have noted that it would be helpful if the Tribunal clearly articulated how and why any particular humanitarian circumstances are found to be exceptional in terms of the Ye test.(Refer [55] above).Result[82] The appeal is allowed. The matter is remitted back to the Tribunal for reconsideration in light of this Court's findings.[83] Leave is reserved to file memoranda on costs. Any memorandum on behalf of the Minister is to be filed by 3 December 2013, with any response on behalf of Mr Jooste to be filed by 10 December 2013.____________________________Katz J