NM (Fiji) v MINISTER OF IMMIGRATION [2020] NZHC 2077

NM (Fiji) v MINISTER OF IMMIGRATION [2020] NZHC 2077 [17 August 2020]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT2009. SEEhttp://www.legislation.govt.nz/act/public/2009/0051/latest/DLM1440836.htmlIN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2020-419-000080[2020] NZHC 2077UNDER THE Immigration Act 2009IN THE MATTER OF An application for leave to appeal unders 245 of the Immigration Act 2009BETWEEN NM (Fiji)ApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: 6 August 2020Appearances: R Nandan for ApplicantM Davie and L Worthing for RespondentJudgment: 17 August 2020JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 17 August 2020 at 4.30pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:Ronald Gordon Lawyers, HamiltonCrown Law, WellingtonIntroduction[1] NM is subject to a deportation liability notice issued under s 161(1)(b) of theImmigration Act 2009 (the Act). He appealed to the Immigration and ProtectionTribunal (the Tribunal) against his liability for deportation. The appeal was broughton humanitarian grounds under s 207. The Tribunal found that there were noexceptional circumstances of a humanitarian nature. NM's appeal was dismissed.1[2] NM now seeks leave from this Court to bring an appeal against the Tribunal'sdecision to this Court. The application for leave to appeal is brought pursuant tos 245(1) of the Act. Leave can only be obtained in respect of a question of law. Thequestion of law NM seeks to raise was not articulated in the papers filed by him norin counsel's written submissions. I raised this matter with Ms Nandan, appearing forNM. She advised that the question her client seeks to raise is as follows:Did the Tribunal err in coming to its conclusion that there were no exceptionalcircumstances that would make it unduly harsh for NM to be deported to hishome country?[3] NM also seeks to adduce further evidence to support his challenge to theTribunal's decision. There has been no application for leave to file further evidence.However, an application for leave to appeal is an interlocutory application. As aconsequence, an affidavit or affidavits in support can be filed.2 This does not howevermean that fresh evidence can be produced on the substantive issue. Rather, anyaffidavit must be confined to matters relevant to the grant of leave.3[4] The respondent, the Minister of Immigration, opposes both the application forleave to appeal and the filing of the further evidence.Factual background[5] NM is 40 years old. He arrived in New Zealand in October 2006, when he was26 years old, on a visitor visa. At that stage, his mother and two sisters had already1 NM v Minister of Immigration [2020] NZIPT 600627.2 Immigration Act 2009, s 245; High Court Rules 2016, r 20.3.3 Fresh Direct Ltd v J M Batten & Associates HC Auckland CIV-2008-404-4757, 3 December 2009at [11].been in New Zealand for some three years, and they had acquired permanent residentimmigration status. When they left Fiji in 2003, NM lived with his two brothers inthat country. One brother subsequently came to New Zealand. The other brotherremains in Fiji. When NM came to this country, he initially stayed with his motherfor a few months but then moved to another city.[6] In April 2007, NM's continued presence in New Zealand became unlawful.However, he applied for and was subsequently granted a two year work permit underthe then applicable provisions in the Immigration Act 1987.[7] NM also formed a relationship with a New Zealand resident in 2007. Basedon this relationship, he was granted, first, a work visa on partnership grounds in August2008 and then a resident visa under the Family (Partnership) category on 13 July 2009.[8] On 31 August 2009, NM assaulted his partner. He was convicted of maleassaults female and ordered to come up for sentence if called upon.[9] In September 2009, NM and his partner had a son. That son is a New Zealandcitizen.[10] In September 2012, NM was granted permanent resident status.[11] In December 2012, NM drove with excess breath alcohol (limit 400micrograms of alcohol per litre of breath – NM's reading was 566 micrograms ofalcohol per litre of breath). He was convicted and sentenced to a fine of $450 togetherwith Court costs and disqualified from driving for a period of six months.[12] On 18 April 2013, NM assaulted his partner again. He pushed her, told her toshut up and then punched her in the face three times with a closed fist. He wasconvicted of male assaults female and sentenced to 75 hours' community work andnine months supervision.[13] NM separated from his partner in mid-2015. A protection order was made inthe Family Court on 22 July 2015 in her favour. She moved to Auckland and becamethe primary carer of her and NM's son. Over the ensuing two and a half years, NMhad supervised access to his son approximately six times per year, but otherwise hehad no contact.[14] In mid-2016, NM married a Fijian citizen but they quickly separated and havesince divorced.[15] On 21 January 2017, NM drove again with excess breath alcohol (limit 400micrograms of alcohol per litre of breath – NM's reading was 727 micrograms ofalcohol per litre of breath). He was convicted and sentenced to 80 hours' communitywork and disqualified from driving for seven months.[16] In April/May 2017, NM returned to Fiji. He remained there with his brotherand his family for over three weeks. In the course of the visit, he met a Fijian citizenwho resides in that country.[17] In January 2018, the protection order in favour of his New Zealand partner wasdischarged, on the basis of an undertaking from NM not to engage in further offensivebehaviour. Since that time, NM has had supervised access as well as telephone contactwith his son pursuant to a parenting order put in place by the Family Court.[18] Between February and May 2019, NM visited his brother in Fiji for four weeks.During this time, he married again – this time to the Fijian citizen who he had metwhen he was in Fiji in April/May 2017. The relationship did not last and they areestranged.[19] NM currently lives in New Zealand with his mother. His former New Zealandpartner has the day-to-day care of their son and he continues to have rights ofsupervised access and telephone contact with his son. He also maintains contact withhis brother in Fiji.[20] NM is working as a line setter.[21] Regrettably, NM's conviction for assault in April 2013 only belatedly came tothe attention of Immigration New Zealand.4 When it became aware of the conviction,on 15 August 2019, it served NM with a deportation liability notice under s 161(1)(b)of the Act on the basis of the 2013 conviction for male assaults female.[22] On 4 September 2019, NM lodged an appeal with the Tribunal on humanitariangrounds under ss 161(2) and 206(1)(c) of the Act. The appeal was heard on 5 February2020 and the decision declining the appeal was made on 11 February 2020.The Tribunal's decision[23] The Tribunal recorded that it was required to allow the appeal only if it wassatisfied that there were exceptional circumstances of a humanitarian nature thatwould make it unjust or unduly harsh for NM to be deported from New Zealand andthat it would not in all the circumstances be contrary to the public interest to allow himto remain in this country.5 The Tribunal referred to relevant Supreme Court authority,6noting that there were three ingredients that had to be established:(a) exceptional circumstances;(b) of a humanitarian nature;(c) that would make it unjust or unduly harsh for NM to be removed fromNew Zealand.The Tribunal went on to record that because there were family interests at issue, it wasrequired to have regard to the entitlement of the family to protection as thefundamental group unit of society, referring to the International Covenant on Civil andPolitical Rights, and various related documents.74 I was told from the bar that Immigration New Zealand does not receive details of convictionsentered against persons who are not New Zealand citizens but who are in this country from theDepartment of Justice. I was also advised, again from the bar, that delays in the issue ofdeportation notices are, as a consequence, not uncommon.5 NM v Minister of Immigration, above n 1, at [37], referring to Immigration Act 2009, s 207(1).6 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.7 NM v Minister of Immigration, above n 1, at [38].[24] The Tribunal recorded the background facts, much as set out above, and thecompeting submissions advanced for NM and for the Minister. It then went on toconsider whether there were exceptional circumstances of a humanitarian nature,noting that such circumstances had to be "well outside the normal run ofcircumstances" and that while they did not need to be unique or rare, they did have tobe "truly an exception rather than the rule".8[25] The Tribunal referred to NM's settlement in this country, acknowledging thathe has developed strong ties to New Zealand, over a significant period of time, andthat he sees New Zealand as his home. The Tribunal acknowledged that NM has astrong nexus to New Zealand through his mother, son, three siblings and wider familyin this country. It also accepted that if he has to relocate to Fiji, he will face financialand other challenges of readjustment. Nevertheless, it considered that he also has astrong nexus to Fiji, because he has lived and worked there for much of his life; he isfamiliar with the language, culture and lifestyle in Fiji; he has visited Fiji regularly;and as recently as last year, he was in that country for seven weeks, when he marriedhis current wife, who still lives in that country. It noted that NM and his wife arecurrently estranged, but that NM had expressed the hope that they can re-establishtheir relationship. It also noted that one of his brothers and his family continue to livein Fiji, and that NM stayed with them in 2017 and more recently in 2019. It noted thatNM believed that his brother might be able to provide accommodation for him again.It noted his work experience in this country and considered that that experience mightassist NM to find employment in Fiji.[26] The Tribunal noted that financial loss and dislocation following deportation arenot uncommon, and that mere economic betterment from living more comfortably inNew Zealand, is not the type of humanitarian consideration in contemplation, and thatit was not intended that "New Zealand house the world".9[27] The Tribunal went on to consider NM's mother's circumstances. It noted thatshe and NM share day-to-day living expenses and that he assists with her support. It8 At [39] – citing from Ye v Minister of Immigration, above n 6, at [34].9 At [43], referring to Romberg v Chief Executive of Department of Labour [1995] NZAR 509 (HC)at [529]-[530].also noted that she has had health difficulties. The Tribunal recorded NM'ssubmission that his mother needed him to remain in New Zealand for her wellbeing.However, it noted that his mother has two daughters and another son who live in thiscountry, and that they have been involved in her care. The Tribunal noted that therewas no evidence to suggest that they were unable to continue assisting their mother,and that, as a New Zealand citizen, the mother has the financial, medical and socialwelfare support of the State. The Tribunal was not satisfied that the mother's conditionrequired NM to remain in this country.10[28] The Tribunal then turned to the interests of NM's son. At the time of thehearing, he was approximately 10 and a half year's old. It referred to the Conventionon the Rights of the Child, which records that the best interests of the child are to begiven important and genuine assessment.11 The Tribunal then referred to the son'scircumstances, noting that in recent years, he has been in the primary care of hismother, and that NM has had only restricted access to him. It noted that the FamilyCourt parenting order in place specifies that contact between NM and his son is tooccur only during school holidays and the Diwali weekend, and otherwise bytelephone, and that NM's contact has to be supervised. It also noted that there arespecific controls on NM's behaviour. The Tribunal accepted that NM's departure fromthis country will likely result in loss and sadness for the son, but observed that NM'srelationship with his son over the last four and a half years has been limited. It notedthat NM and his son live in different centres, over 200 kilometres apart, and that theircontact is for the most conducted by telephone. It also noted that, in 2019,notwithstanding that he had the right to have access to his son, NM instead was in Fiji.It noted that if NM is required to return to Fiji, he will retain the right to telephone theson and that, in time, the son may be allowed to visit NM in Fiji, subject to theagreement of his mother or a new Court order. The Tribunal was not satisfied that thebest interests of the son would be seriously jeopardised by the absence of NM.12[29] The Tribunal concluded by looking cumulatively at NM's circumstances, hismother's circumstances and the circumstances of his New Zealand-based siblings and10 At [45].11 At [46], referring to O'Brien v Immigration and Protection Tribunal [2012] NZHC 2599 at [32].12 At [48].son. It accepted that if NM was deported, there would be disappointment andemotional loss, but that this did not fall within the statutory test of exceptionalcircumstances of a humanitarian nature. The Tribunal was not satisfied that NM hadmet the high threshold required, and it held that the appeal must therefore fail. Itrecorded that, as a result of its finding that there were no exceptional circumstances ofa humanitarian nature, it was unnecessary for it to go on and consider either the unjustor unduly harsh, or public interest, stages of the enquiry under the statutory test.13 TheTribunal did however remove, under s 215(1) of the Act, the period of prohibition onNM re-entering New Zealand following deportation that would otherwise apply unders 179.Submissions[30] Ms Nandan argued that the Tribunal did not properly apply the statutory testunder s 207(1). She referred to Ye v Minister of Immigration, and accepted that thelaw in this area is well settled. She then went through the facts in some detail, arguingthat there are exceptional circumstances applying to NM. She emphasised the lengthof time that he has been in New Zealand, his family relationships in this country, hisbrother's situation in Fiji, his mother's situation and the position that he is in with hisson. She also discussed his employment in this country, arguing that were NM to bedeported, New Zealand would lose a person with a skill set not readily replaceable.She did not suggest that the Tribunal had made any error in recording the facts. Rather,she challenged the Tribunal's decision in relation to them.[31] Ms Nandan then went on to consider the second limb of the s 207 test – whetherit would be contrary to the public interest were NM to remain in New Zealand. Shewent through various factors in this regard, in particular referring to family unity andthe minimal risk that NM might reoffend. She concluded by submitting that theTribunal did not properly consider all of the facts placed before it and take into accountall relevant considerations.[32] Mr Davie, for the Minister, dealt with the requirements put in place by s 245of the Act. He submitted that there is no question of law raised by NM, and that even13 At [49]-[50].if the question of law is raised, the question is of significance only to NM and hisfamily, and is not a question that by reason of its general or public importance oughtto be submitted to this Court for decision. He submitted that alleged errors as to theweight placed on evidence, or the application of settled law to particular facts, rarelygive rise to questions of law sufficient to warrant a grant of leave. Finally, he arguedthat there is no other reason of sufficient importance to warrant the grant of leave.Analysis[33] Section 245 of the Act relevantly provides as follows:245 Appeal to High Court on point of law by leave(1) Where any party to an appeal to, or matter before, the Tribunal (beingeither the person who appealed or applied to the Tribunal, an affectedperson, or the Minister, chief executive, or other person) is dissatisfiedwith any determination of the Tribunal in the proceedings as beingerroneous in point of law, that party may, with the leave of the HighCourt (or, if the High Court refuses leave, with the leave of the Courtof Appeal), appeal to the High Court on that question of law.(3) In determining whether to grant leave to appeal under this section, thecourt to which the application for leave is made must have regard towhether the question of law involved in the appeal is one that byreason of its general or public importance or for any other reasonought to be submitted to the High Court for its decision.[34] The introduction of a leave requirement in the Act demonstrates a deliberateintention by Parliament to limit appeals from Tribunal decisions.14[35] The section was considered by the Court of Appeal in Machida v ChiefExecutive of Immigration New Zealand.15 The Court noted that the section requires aprospective appellant to identify a seriously arguable question of law which either hasimportance extending beyond the particular case or for some other reason warrants adecision from a higher Court. The "general or public importance" test requires "aquestion capable of bonafide and serious argument involving an interest of sufficient14 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [18].15 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721.importance to outweigh costs and delay".16 The relevant issue must "go beyond theparticular circumstances of the applicant", or be one that "suggests the existing lawshould be revisited by the Court".17 The application of the "any other reason" limb ofthe leave to appeal test is settled. The limb will be engaged in "exceptionalcircumstances, involving individual injustice to such an extent that the Court simplycould not countenance the first instance decision standing".18[36] Here, there is no suggestion that the Tribunal misconstrued the relevant law.The Tribunal referred to the decision of the Supreme Court in Ye v Minister ofImmigration.19 Although it dealt with similar provisions in earlier legislation, therewas no suggestion that the law has changed. Indeed, Ms Nandan expresslyacknowledged that the law in this area is settled. Rather, it was asserted for NM thatthe Tribunal erred by declining to find that the adverse consequences resulting fromhis deportation amounted to exceptional circumstances of a humanitarian nature. That,however, is a factual finding. On the face of its decision, it appears that the Tribunalidentified and applied the correct legal principles to the facts before it, and there isnothing in Ms Nandan's critique of the Tribunal's decision which suggests to thecontrary. NM is simply asking for leave, so that he can come to this Court and ask itto take a different view of the facts. The question posed (noted above at [2]) is not aquestion of law.[37] Even if there is a question of law (which I do not consider to be the case), it isnot a question of general or public importance. NM's case, at its highest, is that thereare various matters personal to him and his family, which suggest that the Tribunalerred when it found that there were no exceptional circumstances of a humanitariannature in his case. NM's deportation is no doubt a matter of importance to him andhis family but it does not raise any questions of general or public importance. TheTribunal has simply applied settled law to NM's particular circumstances.16 Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [12]; BC (Philippines) vRefugee and Protection Officer [2019] NZCA 180 at [9].17 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32]; approved by Court ofAppeal in BC (Philippines) v Refugee and Protection Officer, above n 16, at [9].18 Taafi v Minister of Immigration, above n 14, at [19]; approved by Court of Appeal in Machida vChief Executive of Immigration New Zealand, above n 15, at [8] and BC (Philippines) v Refugeeand Protection Officer, above n 16, at [10].19 Ye v Minister of Immigration, above n 6.[38] To the extent that it was asserted that the Tribunal's decision is unfair andunreasonable, this submission does not of itself disclose a question of law, and thearguments advanced for NM fell well short of demonstrating an arguable case that theTribunal's decision fell into this category. It is not a case which falls into the "for anyother reason" limb of s 245(3). Nor was it asserted that the Tribunal's decision hasresulted in individual injustice to such an extent that the Court simply should notcountenance the result.[39] It was submitted that the Tribunal erred in its approach, by failing to considerthe public interest test set out in the legislation, but this cannot disclose a qualifyingquestion of law either. Once the Tribunal has declined to find exceptionalcircumstances of a humanitarian nature, it is settled law that it is not obliged to go onand consider the other parts of the test set out in s 207(1) of the Act.20 Ms Nandan didnot suggest otherwise; nor did she argue that this aspect of the law needsreconsideration.[40] Accordingly, I decline to grant NM's application for leave to appeal theTribunal's decision to this Court. I am not persuaded that there is a question of lawinvolved. If I am wrong in that regard and there is a question of law raised, I am notpersuaded that the question of law is one that, by reason of its general or publicimportance, or for any other reason, should be submitted to this Court for its decision.The further evidence[41] NM filed an affidavit, which had annexed to it various exhibits. Therespondent objected to the admission into evidence of this material. It was argued thatthe documents were irrelevant and that their admission into evidence would becontrary to the scheme of the Act. NM submitted that he was represented by a familymember (his sister) at the Tribunal hearing, that his sister is not a lawyer, and that heshould not be disadvantaged as a result. It was submitted that his affidavit does nomore than outline his current situation in New Zealand, and changes in his situationsince the Tribunal's decision.20 Wu v Minister of Immigration, above n 16, at [11].[42] I accepted the evidence de bene esse at the hearing, indicating that I would dealwith the matter in my substantive decision.[43] The further evidence NM seeks to adduce comprises:(a) an affidavit dated 18 June 2020, where NM gives detail of hisemployment in New Zealand, his brother's situation in Fiji, hisemployment prospects in that country, and his fear that his formerpartner in this country may obstruct his ongoing contact with his son;(b) an application for the dissolution of NM's marriage; and(c) a letter from NM's employer dated 2 March 2020.[44] As I have already noted, an application for leave to appeal proceeds as aninterlocutory application and affidavits in support can be filed, as long as they areconfined to matters relevant to the grant of leave. In the immigration context, theCourt of Appeal has recently summarised the position as follows.21[24] To be admitted in this Court, further evidence should be fresh (that isit could not, with reasonable diligence, have been produced at firstinstance), credible (that is reasonably capable of belief), and cogent(likely to have an important influence on the result).[25] In the specific area of immigration appeals there is also the overlay ofs 226 of the Act making it the responsibility of Mr Hai to establish hiscase and to ensure that all evidence is before the Tribunal. As thisCourt has noted in relation to applications for leave to bring judicialreview under s 249 of the Act, the Court may reject or discount newevidence on the ground that its admission is contrary to the scheme ofthe legislation. We agree with counsel for the Minister that thisprinciple applies equally to applications for leave to appeal under s245 of the Act.[45] Applying these principles, I am not persuaded that the further evidence NMseeks to adduce in evidence is admissible.21 Hai v Minister of Immigration [2019] NZCA 55; And see CD v Immigration and ProtectionTribunal [2015] NZCA 379, [2015] NZAR 1494 at [20]-[25].(a) NM seeks to give further evidence about his employment in NewZealand. That evidence is not fresh; it could, with reasonable diligence,have been produced before the Tribunal. Further, it is not cogent,because evidence that NM was in skilled employment was before theTribunal and it factored this evidence into its decision.(b) Evidence that NM's brother has lost his job in Fiji is fresh but it is notcogent because the Tribunal did not place any significant weight onNM's brother's employment status, or on his ability to provide a placefor NM to live if he is deported to Fiji. It simply recorded that NMbelieves that his brother could accommodate him again. The Tribunalnoted the relationship between NM and his brother, and considered thatit (along with other matters) demonstrated a nexus with Fiji. Itobserved that NM would be able to readjust to living again in Fiji withthe support of his brother and extended family.(c) NM's fears as to his employment prospects are neither credible norcogent. He says that he will not be able to find a job in Fiji, but thisassertion is unsubstantiated. There is, for example, no suggestion thathe has tried to find a job in that country. Further, the assertion is, onthe face of it, inconsistent with his earlier assertion that he is a skilledand valued employee, at least in New Zealand.(d) Evidence of the application for the dissolution of his marriage is notcogent, because the Tribunal was aware that NM was estranged fromhis wife. It recorded this in its decision and it played no material partin its reasoning. Whether divorce proceedings have now been issued isimmaterial.(e) NM's concern that his former New Zealand partner will obstructcontact with his son is not cogent, because there is no basis to assumethe anticipated conduct on the part of NM's former partner. Even ifNM's concern is borne out, he will be able to have recourse to theFamily Court, as his former partner has the day-to-day custody of theirchild pursuant to an order of that Court. That will be the case whetherNM is in New Zealand or Fiji.[46] Accordingly, I decline to allow NM to adduce the further evidence. I have nottaken it into account in considering the application for leave to appeal.Result[47] For the reasons I have set out, NM's application for leave to appeal to thisCourt is declined. Further, I decline to allow NM to adduce the further evidencesubmitted by him.[48] The Minister is entitled to his reasonable costs and disbursements. Costs aresought on a 2B basis. It is my preliminary view that that categorisation is appropriate.If that is accepted by NM, then I expect that counsel will be able to resolve quantum.If there is disagreement, then I direct as follows:(a) any application for costs and disbursements is to made by way ofmemorandum and is to be filed and served within 10 working days ofrelease of this decision;(b) any memorandum in reply is to be filed and served within a further 10working days;(c) memoranda are not to exceed five pages.I will then deal with the issue of costs and disbursements on the papers, unless I requirethe assistance of counsel._________________________________Wylie J