NILESH ANAND MANI V THE MINISTER OF IMMIGRATION HC WN CIV 2009-485-262

NILESH ANAND MANI V THE MINISTER OF IMMIGRATION HC WN CIV 2009-485-262 15 May 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2009-485-262BETWEEN NILESH ANAND MANI Appellant AND THE MINISTER OF IMMIGRATION Respondent Hearing: 14 May 2009 Counsel: S R Shankar for Appellant V Casey for Respondent Judgment: 15 May 2009JUDGMENT OF RONALD YOUNG J Introduction[1] On 22 September 2006 the appellant was sentenced to two years, ten months' imprisonment for aggravated robbery. As a result in early February 2007 the Minister of Immigration gave Mr Mani notice under s 91(1)(c) of the Immigration Act 1987 ("the Act") of his deportation. Mr Mani appealed to the Deportation Review Tribunal under s 104 of the Act. However, on 26 November 2008 the Tribunal dismissed his appeal. He now appeals to the High Court pursuant to s 117. [2] I reproduce in full the appellant's grounds of appeal:1. The learned Deportation Review Tribunal (DRT) erred in law as well as both in law and facts in confirming the decision of the deportation of the Appellant by the Minister of Immigration upon the grounds that he failed to satisfy that it would not be contrary to public interest or unjust or unduly harsh to deport the Appellant, in that:(a) the Appellant had established that he had been reformed and that he presented no further risk to the New Zealand public. (b) the Deportation of the Appellant would seriously and injuriously affect his close relatives and friends with established roots in New Zealand as much as it would affect the Appellant as well. (c) the Appellant would suffer undue hardship if he were deported. (d) the DRT failed to give adequate/proper weight to s105 (1) and (2) of the Immigration Act 1987. 2. The DRT failed to evaluate the evidence of the Appellant and his girlfriend that both were more than just boyfriend and girlfriend who wished to marry each other in due course and that the girlfriend would not go back to Fiji to settle with the Appellant as such the decision was unjust and unduly harsh to both of them. 3. The DRT was wrong in making following negative assumptions: (a) the younger brother could regularly visit his brother in Fiji. (b) the younger sister would not migrate with the parents. (c) the mother's ill health would be a bar to her migration to New Zealand. (d) the Appellant could find a job as a furniture polisher in Fiji even though the evidence suggested it as extremely unlikely. (e) all the positive evidence presented on behalf of the Appellant was analysed as having negative effect to the Appellant's case and as such not assisting the Appellant. 4. The DRT failed to properly evaluate and take into account the evidence of the Appellant successfully completing the criminogenic MIRP course, abandoning his former criminal friends, obtained full time employment in a trade, obtained forklift operator's licence paid for by the employer and that he reconnected with his religion as positive features outweighing his conviction and sentence. 5. Having regards to the totality of the evidence and failure to quash the deportation order the decision is unjust and unduly harsh against the Appellant having regards to all the circumstances of the case.Application to adduce further evidence[3] In addition, the appellant has filed an application to adduce further evidence. The further evidence is that the appellant and his girlfriend have married since the decision of the Tribunal. The appellant's wife has filed an affidavit whichemphasises that if Mr Mani and her are to leave New Zealand for Fiji she will loose the contact she currently has with her parents and siblings. [4] The respondent opposes the application. It emphasises that this is an appeal on a question of law and, therefore, the focus must be on any error in the reasoning of the Tribunal on the basis of the evidence before it (see s 117(1)). In those circumstances, therefore, the respondent says the new evidence cannot be relevant to any matters to be considered by the Court on this appeal. [5] Rule 20.16 of the High Court Rules deals with further evidence on appeals. It provides:20.16 Further evidence(1) Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal. (2) In all other cases, a party to an appeal may adduce further evidence only with the leave of the court. (3) The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal. (4) Further evidence under this rule must be given by affidavit, unless the court otherwise directs.[6] This rule, like r 716 which was the rule governing "Further Evidence" immediately prior to the enactment of the new rules, appears to widen the circumstances under which further evidence can be adduced than was formerly the case. [7] Prior to the amendment in 2003 which added r 716, the hearing of appeals and evidence before an appellate Court was regulated by r 718.[8] Rule 718 provided:718. Hearing of appeal — (1) Every appeal shall be by way of rehearing. (4) In every general appeal, the Court shall have full discretionary power to hear and receive further evidence on questions of fact, either by oral evidence or by affidavit.[9] However, in exceptional circumstances the Court could exercise its inherent jurisdiction to receive such further evidence (see Schier v Removal Review Authority[1998] 12 PRNZ 477 (CA) and Terrace Tower (New Zealand) Pty Limited vQueenstown Lakes District Council [2001] 2 NZLR 388. [10] However, there is nothing to suggest that the new r 20.16 was intended to apply only to general appeals excluding appeals on questions of law. The rule is concerned with "an appeal" without limit. It appears that r 20.16 allows, with leave, further evidence on an appeal on a question of law if there are special reasons. Rule 20.16 replicates r 716, and it appears therefore this has been the law since the amendment in 2003. The same conclusion was reached by Cooper J in the case ofKhan v Accident Compensation Corporation (HC ACK, CIV 2007-485-1632, 25 February 2008). In that case Cooper J said:Previous authorities based on the wording of r 718 in its previous form (e.g.Schier v Removal Review Authority (1998) 12 PRNZ 477; Terrace Tower (NZ) Pty Ltd v Queenstown Lakes District Council [2001] 2 NZLR 388) may no longer state the law. There does not now appear to be any confinement to general appeals only of the open language now used in r 716(3) enabling the High Court to grant leave for further evidence to be adduced if there are "special reasons for hearing it". If I am wrong in that conclusion, then the inherent powers of this Court would enable further evidence to be called.[11] However, in this case I agree with the respondent that the evidence sought to be adduced, cannot be relevant in determining whether the Tribunal has committed an error of law. The Tribunal was faced with a different factual scenario, the appellant was not married but was in a relationship with his now wife. What the appellant submits is that a change in the factual circumstances since the Tribunal's decision would be relevant if a decision-maker was reconsidering the case before the Tribunal. While that may be true, it cannot possibly establish an error of law in the decision made by the Tribunal on the facts then known to it.[12] Finally, changes in the appellant's circumstances since the Tribunal's decision which relate to humanitarian factors can be relevant to the Minister of Immigration's right to review the decision to deport Mr Mani. Mr Mani may apply under s 91(7) of the Act and invite the Minister to revoke the deportation order based on this further information. [13] I refuse to allow the further evidence to be adduced, no special reasons having been established.Merits of Appeal[14] To return to the merits of the appeal. I have reproduced the appellant's grounds of appeal ([2]) verbatim to illustrate my conclusion that they are essentially challenges to the facts and conclusions of the Tribunal based on those facts. They are not, therefore, appeals on questions of law. In any event I consider the Tribunal took into account all of the factual matters mentioned by the appellant in its appeal, it gave them the weight the Tribunal thought appropriate and arrived at a judgment on the essential statutory assessment of whether it would be unduly harsh or unjust to deport the appellant and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand (s 105(1)). [15] The fact that the appellant does not agree with the emphasis or the weight or the conclusions of the Tribunal is not a question of law. On that basis alone, therefore, I would have dismissed the appeal. [16] Further none of the assertions by the appellant, that the Tribunal somehow did not properly consider particular facts, are borne out by an analysis on the Tribunal's decision. To illustrate the point I address each of the complaints by the appellant. [17] As to ground 1(a) the Tribunal specifically took into account and accepted that the appellant did appear to have turned his life around. The Tribunal accepted that when considering the second limb of s 105, that it would not be contrary to the public interest for Mr Mani to remain in New Zealand given the efforts he had madein attempting to rehabilitate himself. It also took the appellant's rehabilitation into account in assessing undue hardship ([27], [28], [29]). [18] As to paragraphs 1(b) and 1(c) the Tribunal acknowledged the affect of deportation on the appellant, his relatives and his friends. After an analysis of these relationships they said:[73] Against this, we must balance the interests of the appellant, his family and girlfriend. These are dealt with in more detail above. The appellant will be saddened by the separation with his brother, Ms Sami and his aunt, as will they. Ms Sami will find the separation particularly upsetting. We have already noted they can communicate with each other and they are able to visit him. He will reunite with his mother and other family members there. There is no breach of international human rights involved. Mr Mani will find employment, albeit at considerably less remuneration. As a young man, he can restart his life there. He has only lived in New Zealand for about six years, so has lived by far the greater part of his life in Fiji. [74] When balancing the serious offending against the compassionate factors concerning him, his family and Ms Sami, notably the separation from his brother and girlfriend, the Tribunal finds that the deportation of the appellant would not be unjust or unduly harsh.[19] These conclusions summarise the position as to the affect of the deportation on the appellant, his relatives and girlfriend, and in particular his employment, living circumstances, and what he might expect upon deportation to Fiji. While the appellant may disagree with the conclusions reached by the Tribunal, all relevant factors are considered and a judgment made as to their unjustness or undue hardship in the appellant's circumstances. [20] Ground 1(d) adds nothing to the grounds of appeal. [21] As to ground 2, contrary to the appellant's submissions it is clear that the Tribunal did take into account and evaluate the evidence of the appellant and his girlfriend relating to their circumstances and the affect the deportation would have on their relationship. The Tribunal acknowledged that their relationship, together with the relationship with the appellant's brother, were the principle issue in the appeal. The Tribunal specifically took into account the affect of the deportation on the relationship with the appellant and his girlfriend. It said:Plainly, however, both of them will be very upset at his departure but again they can maintain communication and Ms Sami says she will visit him.[22] These observations were in the context of noting that the relationship between the two was one of boyfriend and girlfriend and that they neither lived together, nor at that time did they have any plans to marry. The appellant's submissions before the Tribunal confirmed they had no marriage plans. [23] Ground 3 of the appeal sets out what are suggested to be negative assumptions. As to 3(a) the capacity of the appellant's brother to regularly visit him in Fiji reflected no more than the evidence the younger brother gave to the Tribunal that he would visit his brother in Fiji. Whether, as counsel claimed, this is unlikely, is not something the Tribunal could assess. They were entitled to rely upon the evidence. Whether such visits actually occur will be a matter for the appellant and his brother. [24] As to 3(b) and 3(c), the migration of the appellant's family from Fiji to New Zealand was at the time of the hearing no more than an intention. The appellant's family had not made a successful application. The Tribunal, therefore, had to approach the case on the basis that the appellant's family were for the foreseeable future going to be in Fiji. The appellant's claim, that the Tribunal said the appellant's mother's ill health would be a bar to her migration to New Zealand, is not accurate. The Tribunal understandably thought her ill health was a major obstacle in migrating. The important thing is, however, at the time of the Tribunal hearing the appellant's family were not entitled to shift to New Zealand. [25] As to 3(d), the Tribunal's observations regarding the appellant's job opportunities in Fiji were no more than a reflection of the appellant's own evidence that such work would be available in Fiji. The Tribunal on the other hand acknowledged the difficult economic conditions that Fiji faced. [26] Appeal ground 3(e) requires no response, it is a generalised observation and adds nothing to the other grounds of appeal.[27] As to ground 4 the efforts that Mr Mani had made since his release from prison were relevant, were acknowledged by the Tribunal, and were taken into account in the Tribunal's conclusion that it would not be contrary to the public interest to allow Mr Mani to remain in New Zealand and in considering whether deportation would be unduly harsh. [28] When the Tribunal turned to consider the s 105(2) matters under the heading of the appellant's personal circumstances, the Tribunal acknowledged the appellant's efforts since his release from prison. After detailing those efforts they said:The appellant is to be commended for this turn-around in his attitude.[29] The appellant's change in attitude was also acknowledged when the nature of the appellant's offending was considered (s 105(2)(e)). [30] While it is clear that the Tribunal considered the principal issue was the effect of separation from his family and girlfriend, their discussion illustrates they did not neglect the appellant's "turn-around" when considering undue harshness. [31] As to ground 5 this is essentially a repeat of the other grounds. [32] For the reasons given, therefore, I am satisfied: a) this was essentially an appeal against findings, conclusions and weight given to the facts identified by the Tribunal and therefore not an appeal based on a question of law; b) in any event, the alleged errors identified by the appellant were not errors. [33] The appeal will be dismissed.Costs[34] Counsel for the respondent, if costs are sought will file memorandum within fourteen days and the appellant in response within a further fourteen days. _____________________________ Ronald Young JSolicitors: S R Shankar, Barrister, PO Box 22044, Otahuhu, email: shankar.law@xtra.co.nz V Casey, Crown Law Office, PO Box 2858, Wellington, email: victoria.casey@crownlaw.govt.nz