HAI v MINISTER OF IMMIGRATION [2019] NZHC 2584

HAI v MINISTER OF IMMIGRATION [2019] NZHC 2584 [11 October 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-844[2019] NZHC 2584IN THE MATTER OF Immigration Act 2009, section 245BETWEEN MOHAMMED NAUSHAD HAI alsoknown as NAUSHAD ALI andMOHAMMED ALIAppellantAND MINISTER OF IMMIGRATIONRespondentHearing: on the papersJudgment: 11 October 2019JUDGMENT OF POWELL JThis judgment was delivered by me on 11 October 2019 at 3.30 pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel: E Telle for the AppellantNixon Fong, Crown Law, Wellington for Respondent[1] Following a successful application for leave to the Court of Appeal1 theseproceedings have been referred back to this Court for the hearing of an appeal againsta decision of the Immigration and Protection Tribunal.2 As a consequence of thedecision of the Court of Appeal the parties now seek consent orders:(a) allowing the appeal;(b) setting aside the Tribunal's decision; and(c) remitting the appeal to the Tribunal for re-hearing and determination.[2] The background to the parties' request was set out in a joint memorandumwhich provides:By a judgment dated 23 August 2017, Hai v Minister of Immigration [2017]NZHC 2028, this Court dismissed the appellant's applications for leave toappeal and bring judicial review against a decision of the Immigration andProtection Tribunal in Hai v Minister of Immigration [2017] NZIPT 600343("Tribunal's decision"), pursuant to ss 245 and 249 of the Immigration Act2009 ("Act"), respectively. The Tribunal had dismissed the appellant's appealagainst his deportation liability on humanitarian grounds, under s 207 (1) ofthe Act.Pursuant to s 245(1) of the Act, the appellant subsequently applied to the Courtof Appeal for leave to appeal against the Tribunal's decision; and to adducefurther evidence from Ms Linda Wikaira and Dr Caleb Armstrong (which wasnot before the Tribunal or this Court at the leave hearing). By a judgment 15March 2019, Hai v Minister of Immigration [2019] NZCA 55, the Court ofAppeal granted (i) the appellant's application to adduce further evidence and(ii) leave to appeal in relation to the following questions of law for this Court'sdetermination (at [53]):(a) Was the Tribunal's finding, that because Mr Hai did not permanentlyreside with his children the negative impact on the children ofdeportation was outweighed by other factors, made without evidencereasonably capable of supporting that conclusion, especially in lightof the new evidence of Ms Wikaira and Dr Armstrong?(b) If the answer to question (a) is yes, did this cause the Tribunal tomisapply arts 3 and 9 of the United Nations Convention on Rights ofthe Child?(c) If the answer to question (b) is yes, should the proceeding bereferred back to the Tribunal for rehearing?1 Hai v Minister of Immigration [2019] NZCA 55.2 Hai v Ministry of Immigration [2017] NZIPT 600343.The Court also noted, at [54], that a full psychologist report by way of affidavitmay now be required from Dr Armstrong (for this Court's consideration indetermining the above questions of law).As the Tribunal did not have the benefit of the evidence of Ms Wikaira andDr Armstrong at the time, counsel respectfully consider that, rather thanlitigating the above questions in this Court, the preferable course is to facilitatea reconsideration by the Tribunal of the appellant's appeal against hisdeportation liability on humanitarian grounds (with the benefit of the newevidence). Formal orders are necessary as the Tribunal is functus officio onceit has made a determination and has no power to embark on a reconsiderationof its own initiative.[3] Having considered the position as has been set out, I am satisfied that the ordersshould be made as sought. I accordingly make the following orders by consent in theterms of the draft order provided by counsel:(a) the appellant's appeal against the decision of the Immigration andProtection Tribunal ("Tribunal") in Hai v Minister of Immigration[2017] NZIPT 600343 (Tribunal's decision") is granted;(b) the Tribunal's decision is set aside;(c) the appellant's appeal against his deportation liability on humanitariangrounds, pursuant to s 2017(1) of the Immigration Act 2009, is remittedto the Tribunal, to be differently constituted, if reasonably practicable;(d) the appellant's appeal is to be determined on the basis of (among otherthings) evidence already given before the Tribunal, the evidence ofMs Wikairi and Dr Armstrong (as adduced before the Court of Appeal),the forthcoming full report of Dr Armstrong (as referred to at [54] ofthe Court of Appeal's judgment in Hai v Minister of Immigration [2019]NZCA 55) and any other further evidence as may be produced by theparties and as accepted by the Tribunal.[4] The parties are to bear their own costs on these proceedings._______________________________Powell J