MUTSAMWIRA v MINISTER OF IMMIGRATION [2023] NZCA 623

MUTSAMWIRA v MINISTER OF IMMIGRATION [2023] NZCA 623 [7 December 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA367/2023[2023] NZCA 623BETWEEN SAYMORE MUTSAMWIRAApplicantAND MINISTER OF IMMIGRATIONRespondentCourt: Miller and Wylie JJCounsel: Applicant in personA W M Britton and N N A El-Sanjak for RespondentJudgment:(On the papers)7 December 2023 at 10 amJUDGMENT OF THE COURTA The application for leave to appeal to the High Court is declined.B The applicant must pay costs to the respondent for a standard application ona band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The applicant, Saymore Mutsamwira, came to New Zealand in 2009. Hebecame a resident of this country in 2014. He has however been convicted of a numberof offences committed whilst in New Zealand. As a result, in May 2022, he was servedwith a deportation liability notice.1 He challenged his deportation liability before theImmigration and Protection Tribunal (the IPT),2 but was unsuccessful.3 He thensought leave to appeal the IPT's decision on a point of law to the High Court unders 245 of the Immigration Act 2009 (the Act).4 The High Court declined hisapplication.5[2] Mr Mutsamwira now seeks leave from this Court to appeal the IPT's decisionto the High Court.6 He is also seeking leave from this Court to bring judicial reviewproceedings in respect of the IPT's decision.7[3] The respondent opposes Mr Mutsamwira's applications.Background[4] Mr Mutsamwira is a citizen of Zimbabwe.8 He received his initial educationand obtained a university qualification in that country.9 He became a member of anopposition party.10 He claims that he participated in protests against the Zimbabweangovernment and that he was, on occasion, detained for his involvement in the protestsand harassed and assaulted by the police.11[5] Mr Mutsamwira moved to the United States in 2003, where he completed apostgraduate university qualification.12 In about 2006 he moved to theUnited Kingdom to work.13 In about 2007 he moved to South Africa and hesubsequently came to New Zealand in 2009.14 By 2015, Mr Mutsamwira had obtaineda doctoral degree in this country.15 He later completed a postgraduate certificate in1 Immigration Act 2009, s 161(1)(a)(iii) and (1)(b).2 Section 206(1)(c).3 Mutsamwira v Minister of Immigration [2022] NZIPT 600726 [IPT decision].4 Immigration Act, s 245(1).5 Mutsamwira v Minister of Immigration [2023] NZHC 1471 [High Court leave decision].6 Immigration Act, s 245.7 Section 249.8 IPT decision, above n 3, at [1] and [91].9 At [25].10 At [26].11 At [26].12 At [28].13 At [29].14 At [30]–[31].15 At [35].law.16 He is now in his mid-40s.17 He has worked in a variety of occupations butcurrently describes himself as a student.18 He became a New Zealand resident in 2014,on the basis of his relationship with his former partner, who is a New Zealand citizen.19He has a child with this partner. The child has been in the mother's care since she andMr Mutsamwira separated.20[6] Mr Mutsamwira has been diagnosed with depression, anxiety and bipolardisorder.21 He has at times abused alcohol, although not in recent years.22[7] Mr Mutsamwira has been convicted of a number of offences in this country.23He received two initial convictions for drink driving, a conviction for driving whiledisqualified, a conviction for common assault, a third conviction for drink driving, aconviction for careless driving and a conviction for sexual violation by rape. For thislatter conviction Mr Mutsamwira was sentenced to a term of six years and one month'simprisonment.24 He unsuccessfully appealed the conviction to this Court,25 and,subsequently, failed to obtain leave to appeal to the Supreme Court.26 Mr Mutsamwirawas held in custody for a period, but was released on parole in 2021.[8] The deportation liability notice served on Mr Mutsamwira was a consequenceof his third drink-driving conviction and his conviction for rape.27The IPT's decision[9] The hearing before the IPT occurred on 25 and 26 October 2022.Mr Mutsamwira had sought to adjourn the hearing a number of times previously onhealth grounds. He tried to adjourn it again on that basis, but his application in this16 At [41].17 At [1].18 At [35].19 At [34].20 At [36].21 At [32].22 At [32] and [39]–[40].23 See IPT decision, above n 3, at [6] and [8]–[9]; and High Court leave decision, above n 5, at [4].24 R v Mutsamwira [2019] NZDC 9977.25 Mutsamwira v R [2021] NZCA 177.26 Mutsamwira v R [2021] NZSC 181.27 Immigration Act, s 161(1)(a)(iii) and (b); and see IPT Decision, above n 3, at [1].regard was declined.28 Mr Mutsamwira's challenge to the deportation liability noticewas based on humanitarian grounds. He claimed that there were exceptionalcircumstances of a humanitarian nature that made it unjust or unduly harsh for him tobe deported.29 He put forward a number of reasons to support this assertion:30a) He has strong ties with New Zealand but few connections in Zimbabwe. He isunlikely to be accepted in Zimbabwe now because he has spent so much timeliving in western countries.b) He would be unable to contact his New Zealand child. The child would sufferemotional harm should he be required to leave this country.c) He would be unable to access psychological support and would as a resultsuffer a mental health crisis in Zimbabwe. This would be grossly inhumane.d) He would be at risk of persecution in Zimbabwe because of his previous protestactivity in that country.e) He has poor employment prospects in Zimbabwe.f) He would be unable to access appropriate medical treatment in Zimbabwe.[10] The IPT referred to s 207(1) of the Act which sets out the circumstances inwhich it can allow an appeal against liability for deportation based on humanitariangrounds.31 It referred to relevant Supreme Court authority and noted that threeelements must be present before such an appeal can be allowed; first, there must beexceptional circumstances, secondly, the circumstances must be of a humanitariannature and, thirdly, it must be unjust or unduly harsh if the appellant were to beremoved from New Zealand.32 The IPT noted that exceptional circumstances require28 See IPT decision, above n 3, at [15]–[22].29 At [2].30 At [68].31 At [87].32 At [88] and [90] referring to Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104at [34].circumstances well outside the normal run of circumstances found in deportation casesgenerally.33[11] The IPT rejected the grounds advanced by Mr Mutsamwira:a) It accepted that Mr Mutsamwira has some nexus with New Zealand but did notconsider that there was any evidence that Mr Mutsamwira would not beaccepted in Zimbabwe because of the time he has spent living in westerncultures.34b) The IPT found that there was no reliable evidence to suggest thatMr Mutsamwira's daughter would be adversely affected by his deportation.35It noted that Mr Mutsamwira has primarily maintained a long-distancerelationship with his daughter.36c) It rejected Mr Mutsamwira's claim that his mental health would worsen inZimbabwe.37 The IPT considered that there was no evidence to support thisclaim or to show that Mr Mutsamwira could not access appropriate services inZimbabwe.38d) It rejected Mr Mutsamwira's concerns for his safety.39 The IPT considered thatthere was no reliable evidence to support his concerns that he would bepersecuted.40 It considered that much of the claim was "entirely speculativeand so [could] be accorded limited weight".41e) It accepted that Mr Mutsamwira might have difficulty finding employment inZimbabwe but noted that economic betterment was insufficient to establishexceptional humanitarian circumstances.4233 IPT decision, above n 3, at [90] quoting Ye v Minister of Immigration, above n 32, at [34].34 IPT decision, above n 3, at [92]–[98].35 At [117]–[122].36 At [120].37 At [104]–[109].38 At [107].39 At [110]–[116].40 At [112] and [115]–[116].41 At [116].42 At [99]–[103].f) It found that there was no evidence to suggest that Mr Mutsamwira would beunable to access appropriate medical treatment in Zimbabwe.43[12] The IPT considered that, cumulatively, the matters raised did not constituteexceptional and humanitarian circumstances.44 It observed that, even if qualifyingcircumstances had been established, it would not have been unjust or unduly harsh forMr Mutsamwira to be deported.45 It noted that his liability for deportation arosebecause of his serious offending, in particular the sexual violation by rape of a highlyvulnerable woman.46Subsequent steps[13] In December 2022, Mr Mutsamwira filed a notice of application seeking leaveto appeal the IPT's decision to the High Court under s 245 of the Act. Subsequently,it became apparent that Mr Mutsamwira also wished to seek leave under s 249(3) ofthe Act to pursue review proceedings under the Judicial Review Procedure Act 2016.In a minute dated 1 May 2023, Osborne J made directions requiring Mr Mutsamwirato file and serve an application for review by 8 May 2023. No application was madeas directed and, as a result, the High Court did not address s 249 of the Act in its leavedecision.The High Court's leave decision[14] Osborne J set out the relevant facts and the procedural history, before referringto the requirements for leave under s 245 of the Act.47 He observed that the IPT hadcorrectly applied the relevant test in accordance with applicable case law.48 Heemphasised that there were only two matters determined by the IPT whichMr Mutsamwira was seeking to challenge — first, whether the IPT erred in findingthat his fears for his safety, if he is returned to Zimbabwe, did not constitute ahumanitarian circumstance of an exceptional nature, and, secondly, whether the IPT43 At [104]–[109].44 At [124]–[125] and [129].45 At [130]. The IPT considered the unjust or unduly harsh inquiry at [131]–[143].46 At [143].47 High Court leave decision, above n 5, at [3]–[21].48 At [23]–[26] referring to Ye v Minister of Immigration, above n 32, at [34].erred in finding that his mental health issues were not a humanitarian circumstance ofan exceptional nature.49[15] The Judge did not consider that Mr Mutsamwira's fears regarding his safetyraised a question of law that met the statutory criteria for leave.50 He observed thatdebate as to the evidential conclusion reached by the IPT was about the facts asdetermined and not the application of the law.51 He commented that there were norelevant humanitarian circumstances to consider in relation to the risk toMr Mutsamwira's safety, because the evidence did not establish such risk.52 Underthe circumstances, the Judge considered that leave could not be granted in relation tothis ground, because it related to the IPT's underlying factual findings.53[16] In relation to Mr Mutsamwira's mental health concerns, the Judge alsoconcluded that there was no error of law for the same reasons.54[17] Overall, the Judge held that leave to appeal could not be granted in relation tothe proposed grounds of appeal Mr Mutsamwira sought to raise, because the proposedgrounds of appeal related to the IPT's underlying factual findings.55Submissions[18] Mr Mutsamwira filed his own submissions. He asserted that his applicationwas made in reliance on both ss 245 and 249 of the Act. He raised the followingissues:a) that the IPT erred in finding that his fears for his safety, if he is returned toZimbabwe, were not an exceptional circumstance of a humanitarian nature;b) that the IPT erred in finding that his mental health issues were not anexceptional circumstance of a humanitarian nature; and49 High Court leave decision, above n 5, at [41].50 At [43].51 At [43].52 At [43].53 At [43].54 At [44]–[45].55 At [46].c) that the IPT erred procedurally by failing to hear oral evidence from hiscounsellor, Allistair Odgers.[19] Mr Mutsamwira also submitted that he was not granted sufficient time by theHigh Court to prepare an application for review and that, as a result, he did not receivea fair hearing in the High Court in relation to this issue.[20] Mr Mutsamwira identified the following questions of law he wishes theHigh Court to determine on appeal if leave is granted:a) What constitutes genuine fear for one's safety that can give rise to a finding ofan exceptional humanitarian circumstance?b) What constitutes mental health issues that are a humanitarian circumstance ofan exceptional nature?He submitted that both of these questions raise matters of general and publicimportance.[21] The respondent submitted that Mr Mutsamwira's application reflects no morethan his dissatisfaction with the IPT's factual findings and that he seeks to relitigatethose findings. It argued that neither of the questions of law asserted byMr Mutsamwira are reasonably arguable, for the following reasons:a) The IPT considered Mr Mutsamwira's safety and mental health concerns andmade factual findings that were reasonably open to it in relation to both, basedon its assessment of the evidence before it, including country information andmedical information.b) The IPT did not err in not taking oral evidence from Mr Odgers.Mr Mutsamwira had the burden of establishing his case. He failed to ensurethat Mr Odgers was available. In any event, Mr Odgers absence did notprejudice Mr Mutsamwira, as the IPT was able to and did consider Mr Odgers'written evidence.c) This Court is de novo considering whether or not to grant leave to appealagainst the IPT's decision. Procedural directions made in the High Court areirrelevant to that issue. In any event, there was no procedural impropriety inthe High Court. Mr Mutsamwira failed to comply with case managementdirections and he did not provide any evidence to support his assertion that hewas at the time unable to prepare and file an application for review.[22] Finally, the respondent submitted that the proposed grounds of appeal, even ifthey raise issues of law, are confined to Mr Mutsamwira's personal circumstances. Itargued that neither of the identified questions of law raises an issue of general or publicimportance.Analysis[23] Relevantly s 245 of the Act 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 theHigh Court (or, if the High Court refuses leave, with the leave of theCourt of Appeal), appeal to the High Court on that question of law.(1A) A decision by the Court of Appeal to refuse leave to appeal to theHigh Court is final.(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.[24] This Court has previously commented on this ambit of this section.56 It said asfollows:[8] In its practical application, s 245 requires an applicant to identify aseriously arguable question of law which either:(a) has importance extending beyond the particular case (whichis what "general or public importance" entails); or(b) for some other reason, warrants a decision from theHigh Court.Although category (b) is open ended, we agree with a series of decisions inthe High Court which have held that it would only be in an exceptional caseinvolving individual injustice to such an extent that the Court simply couldnot countenance the Tribunal's decision standing, that this alternativerequirement could be met.[25] In our view, Mr Mutsamwira's application does not identify any seriouslyarguable question of law. We accept that what amounts to a genuine fear of persecutionthat could give rise to a finding of an exceptional humanitarian circumstance, or whatconstitutes mental health issues that are a humanitarian circumstance of an exceptionalnature, could, in appropriate cases, raise matters of law. But, in the present case, thereare no factual findings on which any such fears or issues can be based. We agree withthe respondent that Mr Mutsamwira is seeking to do no more than relitigate the IPT'sfactual findings. There is nothing to suggest that those factual findings give rise toany error of law; nor has Mr Mutsamwira put forward anything to suggest that the IPTmisdirected itself or misapplied the correct legal tests.[26] The IPT's decision was detailed and thorough; it considered the evidence putbefore it by Mr Mutsamwira and available from other sources. Based on that evidenceit found that exceptional circumstances, outside the normal run of circumstances foundin deportation cases, could not be established.57 It went on to note that even ifqualifying exceptional circumstances had been made out, it would not have beenunjust or unduly harsh for Mr Mutsamwira to be deported.5856 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721(footnote omitted).57 IPT decision, above n 3, at [129].58 At [143].[27] Further there is nothing to suggest that the two questions identified byMr Mutsamwira as warranting the grant of leave to appeal are seriously arguable inthe circumstances of his case. Neither of the questions have any general or publicimportance beyond Mr Mutsamwira's particular situation and there is no other reasonadvanced which could warrant a decision from the High Court.[28] The two asserted procedural errors, one by the IPT and the other by theHigh Court, are not questions of law. They do not qualify for leave under s 245 of theAct. Nor is either of them of general or public importance. When considering anapplication under s 245, this Court considers matters afresh, so process issues will notgenerally be relevant to the question of whether or not leave should be granted toappeal a decision of the IPT on a point of law to the High Court. There was, in anyevent, no clear error in the procedures followed by either the IPT or the High Court.[29] In relation to Mr Odgers' evidence, it was for Mr Mutsamwira to ensure thatMr Odgers was available if he wanted him to give oral evidence. He failed to do so.Nonetheless, the IPT considered Mr Odgers' written evidence. It was entitled to do soand there was no prejudice to Mr Mutsamwira.[30] For the sake of completeness, we record that this Court has no jurisdiction togrant leave to bring judicial review proceedings under s 249(3) of the Act unless theHigh Court has first refused to grant leave. As we noted above, Mr Mutsamwira failedto file an application for judicial review in the High Court, despite directions that hedo so. As a result, the Judge did not deal with the issue in his leave judgment. Thisprecludes this Court from now considering the application Mr Mutsamwira belatedlyseeks to bring under s 249(3).[31] For the reasons we have set out, we decline to grant leave to Mr Mutsamwirato appeal to the High Court against the decision of the IPT.Result[32] The application for leave to appeal to the High Court is declined.[33] The applicant must pay costs to the respondent for a standard application on aband A basis with usual disbursements.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent