DEVI v CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2018] NZHC 362

DEVI v CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF BUSINESS INNOVATION ANDEMPLOYMENT [2018] NZHC 362 [8 March 2018]BY ORDER OF THE COURT THE INTERIM ORDER FOR SUPPRESSION OFTHE APPELLANT'S NAME IS QUASHED WITH EFFECT FROM 48 HOURSAFTER THE TIME OF DELIVERY OF THIS JUDGMENT TO THE PARTIESIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-1974[2018] NZHC 362IN THE MATTER of Section 245 of the Immigration Act 2009in respect of leave to appeal against adecision to refuse a Resident's VisaBETWEEN RESHI DEVIApplicantAND CHIEF EXECUTIVE OFFICER OF THEMINISTRY OF BUSINESS INNOVATIONAND EMPLOYMENTRespondentHearing: 8 February 2018Appearances: R Chaudhry for ApplicantN Butler for RespondentJudgment: 8 March 2018JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 8 March 2018 at 4.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarIntroduction[1] In May 2016, the applicant, Ms Reshi Devi, applied for a residence visa underthe Family (Partnership) category. Immigration New Zealand ("INZ") declined herapplication. Ms Devi's appeal to the Immigration and Protection Tribunal (the"Tribunal") was dismissed by Judge PR Spiller, the Chair of the Tribunal. Ms Devinow seeks leave from this Court to appeal the Tribunal's decision on a question of lawunder s 245(1) of the Immigration Act 2009.Non-publication orders[2] Pursuant to clause 19 of Schedule 2 of the Immigration Act 2009, Judge Spillerordered that the research copy of the Tribunal's decision be depersonalised by removalof the appellant's name and any particulars likely to lead to the identification of theappellant, her husband or her son.[3] An interim order suppressing publication of the applicant's name was grantedin the hearing at the High Court. Counsel were requested to file memoranda about theissue prior to judgment. No submissions, however, have been filed. There is noserious possibility that the safety of the applicant or any other person would beendangered by the disclosure of the information to warrant suppression.1 I direct thatthe interim order be quashed with effect from 48 hours after the time of the deliveryof this judgment to the parties.Background facts[4] Ms Devi is a 29-year-old Fijian citizen. She was put in contact with her nowhusband, a New Zealand resident, by her mother in law. In 2014, she married him inAustralia after a series of phone conversations that extended over a couple of months.In May 2014, her husband returned to New Zealand. In August, Ms Devi arrived inNew Zealand to join him. In May 2015, the couple had a son who is also a NewZealand citizen.1 Immigration Act 2009, section 151(2)(e).[5] On 2 October 2015, there was a domestic violence incident where the husbandstruck and threatened Ms Devi. The following day a complaint was laid with thePolice. Ms Devi and her son were relocated to a women's refuge where they stayeduntil December 2015. On 5 October 2015, the husband appeared in court and wasreleased on bail with specific conditions not to associate with Ms Devi. On 21 October2015, a temporary protection order was issued against the husband in favour ofMs Devi and her son. On 24 December 2015, the husband's bail conditions werevaried to allow him to return home. On 11 February 2016, the husband pleaded guiltyto charges of, being a male, assaulting a female and behaving threateningly, and wasconvicted and sentenced to one year's supervision. On 7 April 2017, the temporaryprotection order against Ms Devi's husband was discharged.[6] On 2 May 2016, Ms Devi lodged an application for a resident visa under theFamily (Partnership) category. On 1 February 2017, INZ interviewed Ms Devi andher husband. On 27 February 2017, INZ advised Ms Devi in writing that it hadconcerns about her application.[7] INZ noted that, in the interviews, both Ms Devi and her husband were askedabout the domestic violence incident that occurred in October 2015. In her INZinterview, Ms Devi claimed that her husband "used his finger to push her face". Herhusband stated that he "touched her shoulder". These accounts differed not only fromeach other, but also from the information INZ received from the Police which indicatedthat the incident involved more serious violent behaviour. The police summary offacts, which Ms Devi's husband accepted by his guilty pleas, records that the husbandpunched Ms Devi in the back of her head following a verbal argument, pulled her tothe ground from the couch and punched her on the sides of her head using both handsmultiple times. The summary also records that the husband removed his waist-beltand threatened to hit her with it if she said anything or if she did not pack her bag.[8] Through her counsel, Mr Chaudhry, Ms Devi provided a response to INZ andgave an explanation for the differing accounts of the incident. She explained that therehad been "no other domestic issues" apart from "the single incident". By letter dated30 March 2017, INZ declined Ms Devi's application. INZ had concerns about thestability of Ms Devi's relationship, both from information provided during theinterview and from the Police summary of facts; in particular, the domestic violenceincident in October 2015. Overall, INZ was concerned about the credibility of theinformation that Ms Devi and her husband had provided. From the adverseinformation INZ had received, it was not satisfied that the appellant had demonstratedthat her relationship was stable and likely to endure.The appeal to the Tribunal[9] Ms Devi appealed INZ's decision to the Tribunal under s 187 of theImmigration Act. Such appeals are confined to two available grounds.2 First, that therelevant decision was not correct in terms of the residence instructions applicable atthe time. Second, that the appellant has "special circumstances" such that the Tribunalshould recommend granting the application as an exception to the residenceinstructions.[10] The Tribunal dismissed Ms Devi's appeal on both grounds. It found that INZ'sdecision was correct because the couple had failed to discharge the onus of provingthat they were living in a stable relationship that was likely to endure. In particular,the Tribunal determined that INZ had reasonable grounds not to be satisfied that thecouple met the credibility and stable partnership elements. Their accounts of thedomestic violence incident "differed sharply" from the Police summary of facts and,at the time of INZ's decision, the temporary protection order against Ms Devi'shusband was still in force.[11] The Tribunal, having considered the child's best interests, as well as Ms Devi'spersonal circumstances, determined that there was nothing sufficiently special aboutMs Devi's circumstances which "distinguish her from any other individuals who cometo New Zealand, form a relationship and establish a family here, and wish to stay andestablish themselves more permanently."32 Immigration Act 2009, s 187(4).3 Re SZ (Partnership) [2017] NZIPT 204079 at [53].Leave to appeal[12] Section 245(1) of the Act provides that an appellant who is "dissatisfied withany determination of the Tribunal in the proceedings as being erroneous in point oflaw" is entitled, with the leave of the High Court, to appeal on that question of law. Indetermining whether to grant leave, the Court is required by s 245(3) to "have regard"to whether that question "is one that by reason of its general or public importance orfor any other reason ought to be submitted to the High Court for its decision." The"any other reasons" limb is engaged only "in an exceptional case involving individualinjustice to such an extent that the Court could not countenance the Tribunal's decisionstanding".4Relevant law[13] Under s 72 of the Act, residence applications must be decided "in terms of theresidence instructions applicable at the time the application was made". At the time,the applicable immigration instructions were F2.5 and F2.30. Under immigrationinstructions F.25, a partner of a New Zealand citizen or resident will qualify for aresidence class visa under the Partnership Category only if the couple satisfies animmigration officer they have been living together for 12 months or more in apartnership that is "genuine and stable". The onus of proving that the partnership isgenuine and stable lies with the applicant and their partner.[14] F2.30 describes how an immigration officer is to determine whether a coupleis living in a partnership that is genuine and stable. The immigration officer "mustconsider, and be satisfied, there is sufficient proof" of each of four elements:credibility; living together; genuine partnership; and stable partnership. This caseconcerns the credibility and stability elements.Proposed grounds of appeal[15] The applicant seeks leave to appeal on the following three grounds:4 Machida v Chief Executive of Immigration New Zealand [2016] 3 NZL 721, [2016] NZCA 162 at[8].(a) The Tribunal erred by incorrectly applying the relevant immigrationinstructions, in particular, F2.5 and F2.30.(b) The Tribunal erred in its consideration of whether the applicationshould be considered an exceptional circumstance of a humanitariannature as to warrant consideration as an exception to applicableresidence instructions.(c) The Tribunal failed to properly consider all the circumstances of theapplicant's case.Submissions[16] For the applicant, Mr Chaudhry submits that the matters outlined in theproposed grounds of appeal raise important questions of law and are of publicimportance so as to persuade the Court to grant leave. The oral argument focussed ontwo principal points:(a) the Tribunal was incorrect to affirm the decision of INZ with respect tothe immigration instructions F2.5 and F2.30 regarding the genuinenessand stability of the applicant's partnership and its likelihood to endure;and(b) the failure of the Tribunal to consider the best interests of the child andfailure to consider the application as an exception to the applicableresidence instructions due to the special circumstances.[17] The respondent submits that leave to appeal should be refused on the basis thatthe application does not raise any question of law that is capable of serious argumentor of general or public importance. It is submitted that this is not an exceptional caseand the Tribunal correctly interpreted and applied the legal tests under the Act and therelevant residence instructions (F2.5 and F2.30).Application to adduce further evidence[18] In an updating affidavit in support of the application for leave to appeal,Ms Devi sought to adduce four additional documents for the Court's consideration:(a) the Police summary of facts;(b) the temporary protection order;(c) a Minute and Court Memorandum issued by a Family Court Judge; and(d) a Memorandum and Discharge of Temporary Protection Order.[19] Ms Butler did not object to the Court receiving documents (a) and (b) forconsideration, both of which were referred to by Judge Spiller in delivering theTribunal's decision. There is no evidence, however, that documents (c) and (d) werebefore the Tribunal. They do not assist this Court to determine the leave question andthe application to adduce documents (c) and (d) is dismissed.Discussion[20] In order to prove that the Tribunal's factual findings are so incorrect as toconstitute an error of law, the applicant must establish three requirements.5 First, aseriously arguable case that the Tribunal's factual findings are actually wrong.Second, that the factual errors are so grave as to constitute an error of law. Third, thatthe question of law is one of "general or public importance" or is one which "for someother reason" ought to be considered on appeal. I address first the proposed groundsof appeal on which Mr Chaudhry focused his principal submissions.5 Taafi v Minister of Immigration [2013] NZAR 1037 HC at [19].Grounds one and threeCredibility[21] In support of the first and third submissions, Mr Chaudhry submits that theTribunal made a finding of fact which is based on evidence inconsistent with orcontradictory of the Police summary of facts. He submits that in finding that INZ hadreasonable grounds not to be satisfied that the couple were credible under instructionsF2.30, the Tribunal erred in failing to properly consider that her husband had admittedonly to slapping the applicant once and had denied punching and threatening theapplicant.[22] I do not accept Mr Chaudhry's argument. What matters is not what the husbandadmitted to the Police when he was spoken to but what conduct he admitted when hepleaded guilty to behaving threateningly and assaulting Ms Devi. The summary offacts contained assertions of a serious and sustained assault; that is what was concededby the pleas. It is inconsistent with the admission to the Police of a single slap and thelater assertion to INZ that all he did was touch Ms Devi's shoulder. The statements tothe Police and INZ were inconsistent with each other. Ms Devi's account of theincident to INZ that he "used his finger to push her face" differed from her husband'saccount, and further departed from the Police summary of facts that described himpunching her on the sides of her head using both hands multiple times.[23] It must inevitably be the case that Ms Devi lied about the circumstances of theincident; either to the Police (which seems improbable given her husband's guiltypleas) or to INZ officials. Moreover, Ms Devi must be taken to have considered at thetime of her complaint to the Police that her husband's conduct was so serious as tojustify her seeking refuge elsewhere with her son and obtaining a protection order.Her attempts more recently to minimise the seriousness of the assault to better herimmigration prospects are patently disingenuous. It was open to the immigrationofficials to conclude that Ms Devi and her husband lied to them, and to the Tribunalto agree.[24] Credibility is one of the central tests under the immigration rule F2.30. Bygiving accounts that "differed sharply" from the information recorded by Police, bothMs Devi and her husband attempted to mislead INZ and, therefore, failed to satisfythe credibility element. The Tribunal was entitled to find that INZ had reasonablegrounds not to be satisfied that Ms Devi and her husband met the credibility elementunder F2.30 and the proposed question does not raise any issues of general or publicimportance.Stable and genuine[25] The applicant seeks to argue that the Tribunal erred in applying instructionsF2.5 and F2.30 by "translating" a single incident of domestic violence into aconclusive finding that the marriage is not stable or genuine. Judge Spilleracknowledged, however, that the marriage had been "incident-free except for the oneincident".6 The reference to a single incident of domestic violence was not the solematter considered by the Tribunal.[26] The nature of the relationship is one of the central factors to be consideredunder immigration rule F2.5. In this case, the lack of credibility has resonance in thequestion of stability because INZ had to rely to a considerable extent on what theparties said about the nature of their relationship. Having concluded that the lateraccounts of the domestic violence incident lacked credibility, INZ and the Tribunalwere entitled to doubt the truth of the assertions by Ms Devi and her husband that theirrelationship was genuine and stable. They were findings of fact open to the decisionmakers with which this Court cannot interfere.[27] No question of law or fact capable of serious argument arises and there isnothing of general or public importance, or any other reason, to submit the matter tothis Court.6 Re SZ (Partnership) [2017] NZIPT 204079 at [46].Evidentiary standard[28] The applicant submits that guidance is needed on the evidentiary standard theTribunal should apply when deciding appeals concerning the elements underinstruction F2.30. The proposed question does not, however, address an error of lawof the Tribunal.7 In any event, the Tribunal referred to the immigration instructionsunder F2.5c and stated that the onus falls on the applicant and her partner.8 TheTribunal properly applied the onus of proof and the proposed submission does notraise a question of law capable of serious argument or any issue of general or publicimportance.Ground two[29] The applicant submits that the Tribunal erred in "failing to consider significantfactors or unduly limited what can be considered as exceptional circumstances of ahumanitarian nature as an exception to application residence instructions".Humanitarian considerations, however, were not relevant to the decision of either INZor the Tribunal. Such considerations would be relevant if, subsequent to the dismissalof the appeal, the department took deportation proceedings.9 Here, in the context ofrights of appeal concerning residence class visas, the applicable test involvesconsideration of whether "special circumstances of the applicant are such that anexception to those residence instructions should be recommended".10 The Tribunalcannot be faulted for not applying a different test taken from an inapplicable part ofthe Act.[30] The Tribunal found that Ms Devi had no special circumstances, that is, no"circumstances that are uncommon, not commonplace, out of the ordinary, [or]abnormal".11 The Tribunal applied this test to Ms Devi's family circumstances, herhealth and her character, and found the applicant's case to be all too common. It wasentitled to reach that conclusion.7 Immigration Act 2009, s 245(1).8 Re SZ (Partnership) [2017] NZIPT 204079 at [30].9 Immigration Act 2009, s 206.10 Immigration Act 2009, s 187(4)(b).11 Rajan v Minister of Immigration [2004] NZAR 615 9CA) at [24].[31] The Tribunal referred to art 3.1 of the United Nations Convention on the Rightsof the Child which provides that the best interests of the child shall be "a primaryconsideration".12 The child's interests, therefore, are important but not paramount and"may be outweighed, in appropriate cases, by the need to protect the integrity of theNew Zealand immigration policy framework".13 The ultimate effect given to thechild's interests is a matter of assessment against all other factors and do not, therefore,compel a particular result or any particular weight.14[32] The Tribunal specifically addressed the child's interests. The question as towhether or not, because of the inevitability of the applicant's departure from NewZealand, the best interests of the child were served by being with both parents wasconsidered. The Judge was not persuaded on the evidence before him that the childhad special needs or that there were special circumstances by virtue of the childneeding to be with both parents. The Judge said ordinarily that is so but in light of theviolence in the background, he was not persuaded that he could make a definitivefinding about that.15[33] The Tribunal made findings based on all the evidence before it. The weightgiven to the relevant factors in the Tribunal's assessment is a matter for the Tribunalalone.16 The conclusion the Tribunal reached was one open to it and consistent withthe policy and requirements of the Immigration Act. Accordingly, the Tribunal did noterr and the question of law does not raise an issue of general or public importance.Result and costs[34] Ms Devi has not identified a question of law which, by reason of its general orpublic importance or exceptional circumstances involving individual injustice, justifygranting leave to appeal. I dismiss the application for leave to appeal.12 Re SZ (Partnership) [2017] NZIPT 204079 at [49].13 Tau'ili'ili v Chief Executive of the Department of Labour HC Wellington CIV 2009482000075 at[47].14 Ye v Minister of Immigration [2010] 1 NZLR 104, [2009] NZSC 76 at [25].15 Re SZ Partnership) [2017] NZIPT 204079 at [50].16 Minister of Immigration v Zhang [2014] NZAR 88 at [34].[35] The respondent is entitled to an award of costs on a category 2B basis, anddisbursements. If the parties cannot agree on the amount, they shall file and servememoranda not later than 5pm on 30 March 2018. Costs shall then be determined onthe papers.Toogood J