FAZLEY v MINISTER OF IMMIGRATION [2017] NZHC 89

FAZLEY v MINISTER OF IMMIGRATION [2017] NZHC 89 [7 February 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-001631[2017] NZHC 89BETWEEN MOHAMMED TASLIM FAZLEYPlaintiffAND MINISTER OF IMMIGRATIONDefendantHearing: 15 November 2016Appearances: M S S Khan for PlaintiffM J R Conway for DefendantJudgment: 7 February 2017JUDGMENT OF PALMER JThis judgment is delivered by me on 7 February 2017 at 3.15 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors/Counsel:Singhs Solicitors, AucklandCrown Law, WellingtonSummary[1] Mr Mohammed Fazley was convicted of violent offences against his wife in October 2012 and then again in February 2014. The Minister of Immigration signed a Deportation Liability Notice. Mr Fazley appealed against liability for deportation on humanitarian grounds. The Immigration and Protection Tribunal declined the appeal because it was satisfied there were no exceptional circumstances of a humanitarian nature and it would not be unjust or unduly harsh for him to be deported. Mr Fazley seeks leave to appeal the Tribunal's decision on the groundsthat it failed to take into account relevant considerations, misplaced the burden of proof and did not correctly apply international obligations. None of these grounds involve a question of law which justify granting leave to appeal.Mr Fazley[2] Mr Mohammed Fazley is a 36-year-old Fijian citizen. He has five siblings in Fiji and two in Australia. He married in 2003 and came to New Zealand with his wife in December 2004. Her parents and two siblings live in Fiji and two more siblings live in New Zealand. Mr Fazley and his wife both obtained work permits in New Zealand. They had children born in New Zealand in February 2007 and June 2008.[3] In May 2012 Mr Fazley was arrested and remanded in custody for violence against his wife: punching her, grabbing her face, squeezing her mouth and cheeks, hitting her with a belt causing bruises and swelling and struggling with her while she was ironing causing her a first degree burn.[4] At that time his wife's application for residence, which included Mr Fazley and the children, was being processed. Immigration New Zealand was not advised of the charges which would usually result in a six month deferral of the application. In October 2012 Mr Fazley was convicted of male assaults female, assault with a blunt instrument and injuring with intent to injure. Such convictions would usually mean he would not have been eligible for residence unless a character waiver was granted. But Immigration New Zealand was not told of the convictions.[5] Mr Fazley was sentenced to eight months' home detention (not with his wife)and 90 hours' community work. Two months after the end of the home detention sentence Mr Fazley yelled abuse at his wife, pushed her head, followed her car in his, collided and took his son from her car. He was charged and remanded in custody again. In December 2013, while on bail and subject to a non-association order with his wife, Mr Fazley slapped and hit her face and used a hammer to strike her around the knees and left shin, causing bleeding, lacerations, bruising, and swelling. In February 2014 he was convicted of assault, dangerous driving and assault with a blunt instrument. He was sentenced to eight months' and 18 months'imprisonment to be served cumulatively.[6] In investigating the 2014 convictions Immigration New Zealand discovered the 2012 convictions. On 12 November 2015 the Minister of Immigration signed a Deportation Liability Notice for Mr Fazley arising out of the offending (other than the driving charge) and the non-disclosure of the 2012 charges prior to obtaining residence.[7] Mr Fazley was released from prison on 23 December 2015. He appealed to the Immigration and Protection Tribunal (the Tribunal) against deportation on humanitarian grounds.Humanitarian appeals against deportation[8] Section 3(1) of the Immigration Act 2009 (the Act) provides "[t]he purposeof this Act is to manage immigration in a way that balances the national interest, asdetermined by the Crown, and the rights of individuals." To achieve that purpose, s3(2) establishes an immigration system that:(d) provides a process for implementing specified immigration-related international obligations;(e) includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that—(i) enable immigration officers to gather information in relation to visa holders, employers, and education providers to determine compliance with obligations in respect of the system; and(ii) prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security; and(f) establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals;[9] Mr Fazley was liable for deportation because:(a) he was convicted of an offence, punishable by more than three months imprisonment while he held a temporary entry class visa (s 161(1)(a)(ii));(b) he was convicted of an offence, punishable by more than three months imprisonment, within two years of first holding a residence class visa (s 161(1)(a)(iii)); and(c) the Minister determined that relevant information provided in relation to his application for a residence class visa was concealed (s 158(1)(b)(i)).[10] Part 6 of the Act governs deportation and pt 7 provides for appeals andreviews. Sections 206 to 208 of the Immigration Act 2009 provides for appeals ofdeportation on humanitarian grounds. Section 207 states:207 Grounds for determining humanitarian appeal(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.(2) In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest to allow the appellant to remainin New Zealand, the Tribunal must have regard to any submissions of a victim made in accordance with section 208.[11] In Ye v Minister of Immigration, in relation to overstayers, the Supreme Court clarified in relation to the predecessor of s 207 (which is equally applicable here):1(a) The requirement for circumstances to be "exceptional" means they "must be well outside the normal run of circumstances found in overstayer cases generally" – they "do not have to be unique or very rare but they do have to be truly an exception rather than the rule".(b) If there are exceptional circumstances of a humanitarian nature then it is necessary to determine whether they make deportation unjust or unduly harsh.(c) There may be some degree of harshness in removing an overstayer butto be unduly harsh it must "go beyond the level of harshness that mustbe regarded as acceptable in order to preserve the integrity of NewZealand's immigration system".(d) Parliament's test contemplated overstayers being allowed to remain inNew Zealand "if there were humanitarian circumstances of asufficiently unusual kind that their remaining would not undermine the general importance of maintaining the integrity of the immigration system".The Tribunal's decision[12] In his decision Judge Spiller, as the Tribunal, traversed the factualbackground, the parties' submissions, the evidence including from witnesses andrelevant law.2 He carefully considered the circumstances of Mr Fazley, his wife and his children separately.1 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34] - [36].2 Fazley v Minister of Immigration [2016] NZIPT 600288.[13] The Tribunal acknowledged Mr Fazley has ongoing health problems including a heart condition but considered that was under control.3 It considered he does not appear to have strong family connections in Fiji and noted he stated that he loves his wife and two children and will miss them if he has to return to Fiji.4However, it noted he is a Fijian citizen who lived there until the age of 25. He was educated and held various jobs there.5 His five siblings and their families live there and the Tribunal considered he should be able to form links with members of his faith community there.6 It noted he had spent the last four years away from his family, providing them with no financial support and he has remained unemployed since his release from prison.7 It also noted a psychologist's evidence that he and hiswife appeared ambivalent in re-engaging in their relationship and he was primarily motivated by contact with his children.8[14] The Tribunal considered Mr Fazley's wife was well-settled in New Zealand with good ongoing employment and is starting university studies.9 She was open to further contact with Mr Fazley provided there was no further violence and she asked he not be deported as her children love and want him and she needs his help with caring for them.10 The Tribunal acknowledged they had a long relationship and Mr Fazley's support would be of benefit to her.11 But it considered that she has coped with her situation of being apart from him for four years and that she is a strong, resourceful and intelligent woman in good health with access to counselling, friends and supportive work colleagues and two sisters in New Zealand.12 TheTribunal noted the psychologist's report that she was ambivalent about resuming themarital relationship, wishing to do so mainly for the sake of the children and financial and childcare difficulties.133 At [66] and [70].4 At [65]-[70].5 At [68].6 At [68].7 At [69].8 At [69].9 At [71].10 At [71].11 At [72].12 At [73].13 At [74].[15] In relation to the children the Tribunal referred to art 3.1 of the United Nations Convention on the Rights of the Child providing the best interests of the child shall be a primary consideration but neither the paramount nor the primary consideration.14 It acknowledged Mr Fazley lived with his children until they were five and nearly four years old respectively and his wife testified he was a very good father who was actively involved in their care.15 It considered the children still love and want their father and that his contribution to their care would be of benefit to them.16 However it noted the children were aware of the injuries Mr Fazley inflicted upon their mother in 2012 to 2013 and they were affected by that. The psychologist had reported family violence could negatively affect the quality of the parent-child relationship.17 The Tribunal noted Mr Fazley had played a very limited role in the lives of his children since May 2012.18 It considered the evidence demonstrated the children were doing well in their lives and at school with the active, loving support of their mother and emotional support of their maternal grandparents in Fiji and maternal aunts in New Zealand.19 It considered Mr Fazley had not established thatthe children's long term development would be seriously jeopardised by his absence.20[16] The Tribunal emphasised the high threshold in law for a finding under s 207(1)(a) of exceptional circumstances of a humanitarian nature. It recognised Mr Fazley's deportation "will cause him, his wife and his children difficulty, hardship and emotional upset" but was satisfied that "taking into account the abovecircumstances of the appellant, his wife and their children" there were no exceptional circumstances of a humanitarian nature.21[17] The Tribunal went on to consider whether it would be unjust or unduly harsh for Mr Fazley to be deported in terms of s 207(1)(b). It took into account the right to family unity promoted by art 23 of the International Covenant of Civil and Political Rights (ICCPR) and the best interests of the children. It acknowledged the children14 At [75].15 At [76].16 At [76].17 At [77].18 At [78].19 At [79].20 At [79].21 At [81]-[82].would experience loss without the active face-to-face support of their father but found they had been well looked after by their mother over the past four years and it was not established that their long-term interests and development would be seriously jeopardised by the continued absence of their father.22 The Tribunal weighed, against the humanitarian circumstances, Mr Fazley's serious offending andconcealment of information to gain his residence status.23 It was satisfied it was not unjust or unduly harsh for him to be deported from New Zealand. It declined the appeal.Threshold for leave[18] Section 245(1) provides that an appellant who is "dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law"is entitled, with the leave of the High Court, to appeal on that question of law. In determining whether to grant leave s 245(3) requires a court to "have regard" towhether that question "is one that by reason of its general or public importance or forany other reason ought to be submitted to the High Court for its decision".[19] After consideration in a number of cases,24 the Court of Appeal has recentlysummarised the "any other reasons" limb: "that limb would be engaged only in exceptional circumstances involving individual injustice to such an extent that the Court could not countenance the first instance decision standing".25Analysis of appellant's grounds for appeal[20] Mr Khan, for Mr Fazley, seeks leave to appeal the Tribunal's decision on anumber of grounds which I treat in turn.22 At [93].23 At [94].24 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [27] – [32].25 Kumar v Minister of Immigration [2016] NZCA 492, [2016] NZAR 1591 citing Machida v Chief Executive, Ministry of Business Innovation & Employment [2016] NZCA 162, [2016] NZAR 662 at [8].Issue 1: Did the Tribunal fail to take into account relevant considerations?[21] Mr Khan frames this issue in different ways. He submits the Tribunal failed"to properly evaluate the interests of the wife and the two children" or did not evaluate the opposing presentations. Rather, he submits the Tribunal stated only the case background and what each party had presented. I do not agree. The Tribunal stated the case background and the parties' submissions and made clear its own evaluation of both.[22] Mr Khan quotes a number of statements about evidence given by Mr Fazley'swife and other witnesses, apparently in support of the submission that the Tribunal did not have regard to them. But the passages are quoted from the Tribunal's report.It clearly considered them in reaching its determination.[23] Mr Khan submits the Tribunal did "not adequately consider and/or seriously consider" the difficulties for Mr Fazley arising from his health conditions and pointed to a number of medical reports. But I consider the Tribunal made a carefulconsideration of Mr Fazley's health and did not need to refer to all the reports.26[24] Mr Khan submits the Tribunal did not "adequately" deal with the adverseeffects of Mr Fazly losing all contact with his wife and children because he could not return to New Zealand. But the Tribunal explicitly removed the prohibition on Mr Fazley applying for a visa, to visit his children, under s 215(1) of the Act.27 And consideration of the effects of separation was the main point of its decision.[25] Mr Khan is correct in submitting that failure to assess facts properly can, in some circumstances, amount to an error of law. But that is not the case here. I have previously observed that challenging the amount of weight placed on various factors by a decision-maker "usually signals disagreement about the outcome of the decision without being able to impugn it".28 That is so here.26 Fazley v Minister of Immigration, above n 2, at [40], [56](i), [56](l), [57](a), [66], [67], [70].27 At [99].28 AI (Somalia) v Immigration and Protection Tribunal, above n 24, at [49].[26] In addition, Mr Fazley's submissions refer to and annex a letter from hisGeneral Practitioner dated 16 August 2016 – after the Tribunal's decision – and an unsworn statement by Mr Fazley. Ms Conway, for the Crown, says leave was required for these documents to be adduced as evidence and opposes leave being granted. This information was not before the Tribunal and I do not consider thedocuments make any difference to Mr Fazley's application now.Issue 2: Did the Tribunal err by placing the burden of proof on Mr Fazley?[27] Mr Khan submits, as held by the Court of Appeal,29 there is no formal burden of proof on an appellant but that the Tribunal placed the burden on Mr Fazley. Butthe Tribunal's statement he points to as the basis for this submission,30 refers to Mr Fazley not establishing that the children's long term development is seriouslyjeopardised by his absence. This is a matter of fact the Tribunal does not consider established, not an allocation of a formal burden of proof.Issue 3: Did the Tribunal err by not correctly applying the ICCPR and UNCROC?[28] Mr Khan submits the Tribunal did not correctly apply arts 17 and 23(1) of the ICCPR because the deportation was not reasonable, proportionate and necessary. Mr Khan submits the Tribunal did not give the best interests of the children genuine assessment and consideration as an important factor under the UN Convention on the Rights of the Child. But he does not point to anything additional to his other submissions in support of these generic assertions and I do not consider they are seriously arguable.Result[29] I do not consider any of Mr Khan's submissions on behalf of Mr Fazley identify a question of law which, by reason of its general or public importance or exceptional circumstances involving individual injustice, justify granting leave to appeal.29 Minister of Immigration v Al-Hosan [2008] NZCA 462, [2009] NZAR 259.30 Fazley v Minister of Immigration, above n 2, at [80].[30] I decline the application and award costs to the Crown on a 1B basis.Palmer J