MUTSAMWIRA v MINISTER OF IMMIGRATION [2023] NZHC 1471

MUTSAMWIRA v MINISTER OF IMMIGRATION [2023] NZHC 1471 [13 June 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-577[2023] NZHC 1471UNDER section 245 of the Immigration Act 2009IN THE MATTER of an intended appeal against a decision ofthe Immigration Protection TribunalBETWEEN SAYMORE MUTSAMWIRAApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: 13 June 2023Appearances: Applicant in personA W M Britton and N N A El Sanjak for RespondentJudgment: 13 June 2023JUDGMENT OF OSBORNE JThe application[1] Saymore Mutsamwira seeks leave under s 245 Immigration Act 2009 (the Act)to appeal (on questions of law) a decision (the Decision)1 of the Immigration andProtection Tribunal (the Tribunal).[2] The Minister of Immigration opposes the application.1 Mutsamwira v Minister of Immigration [2022] NZIPT 600726 [Decision].Background[3] Mr Mutsamwira is a 45-year-old citizen of Zimbabwe and a New Zealandresident. He came to New Zealand in 2009 on a student visa for study. In 2014 hebecame a New Zealand resident based on his relationship with his then-partner. Withhis then-partner he had one child, who has subsequently been in the care of his formerpartner.[4] Since 2011, he has been convicted of a number of offences:(a) drink-driving (twice);(b) driving while disqualified;(c) common assault (2011–2012);(d) drink-driving (third) and careless driving (2017); and(e) sexual violation by rape (2018).[5] On the rape conviction he was sentenced to a term of six years and one months'imprisonment.2 He was released on parole in 2021.Proceedings under the Act[6] As a result of Mr Mutsamwira's 2017 and 2018 convictions, he was liable fordeportation.3[7] Mr Mutsamwira appealed his deportation liability. The hearing took place inOctober 2022. The grounds of Mr Mutsamwira's appeal were:(a) his nexus with New Zealand — life would be difficult for him inZimbabwe as people will perceive him as "un-African";42 R v Mutsamwira [2019] NZDC 9977.3 Immigration Act 2009, ss 161(1)(a)(iii) and 161(1)(b).4 Decision, above n 1, at [57](a) and [92]‒[98].(b) he has poor employment prospects in Zimbabwe;5(c) he would be unable to access psychological support and would suffer a"mental health crisis" in Zimbabwe that would be "grossly inhumane";6(d) he would be at risk of persecution by the Zimbabwe African Union —Patriotic Fund (ZANU-PF) because of previous protest activity and hislengthy domicile in Western countries;7(e) his daughter would suffer emotional harm should he leave New Zealand— her best interests require that he remain in New Zealand;8 and(f) in Zimbabwe he would be unable to access appropriate medicaltreatment for his cubital compression syndrome.9[8] In the Decision, the Tribunal Member identified Mr Mutsamwira's right ofappeal under s 206(1)(c) of the Act and identified the grounds on which a humanitarianappeal against deportation may be allowed under s 207(1) of the Act.10[9] The Tribunal referred to the test set out in the Supreme Court's judgment in Yev Minister of Immigration ("Ye").11 The Tribunal set out its assessment of the factualgrounds said by Mr Mutsamwira to constitute exceptional circumstances of ahumanitarian nature.12 The Tribunal then considered whether it would be unjust orunduly harsh for Mr Mutsamwira to be deported, and set out the test identified by theSupreme Court in Guo v Minister of Immigration.135 Decision, above n 1, at [57](b) and [99].6 Decision, above n 1, at [57](c) and [104]‒[105].7 Decision, above n 1, at [57](e) and [110]‒[111].8 Decision, above n 1, at [57](d) and [117]‒[118].9 Decision, above n 1, at [58] and [123].10 Decision, above n 1, at [87].11 Decision, above n 1, at [88]; Ye v Minister of Immigration [Ye] [2010] 1 NZLR 104 (SC) ‒ adecision in relation to s 47(3) Immigration Act 1987, but equally applicable to s 207(1)(a)Immigration Act 2009.12 Decision, above n 1, at [90]‒[130].13 Decision, above n 1, at [131]; Guo v Minister of Immigration [2015] NZSC 132 at [9].[10] The Tribunal made its assessment and concluded it would not be unjust orunduly harsh for Mr Mutsamwira to be deported from New Zealand.14 The appeal wasaccordingly declined.15The leave application[11] Mr Mutsamwira's application for leave was filed in reliance on s 245 of theAct.[12] By his notice of application, Mr Mutsamwira identified two alleged errors inthe Decision, namely the findings that:(a) Mr Mutsamwira's fear for his safety if returned to Zimbabwe did notconstitute a humanitarian circumstance of an exceptional nature; and(b) Mr Mutsamwira's mental health issues was not a humanitariancircumstance of an exceptional nature.Procedural matters[13] During case management of the proposed appeal it became apparentMr Mutsamwira had also intended to pursue an application for judicial review.Directions were made requiring Mr Mutsamwira to file a distinct review applicationif he wished to pursue review.16 Mr Mutsamwira did not file a review application.This hearing has accordingly proceeded only in relation to the application for leave toappeal.[14] During the case management of the appeal, Mr Mutsamwira soughtadjournment of the hearing on the basis he had had, or was having, medical operationsin relation to his cubital tunnel syndrome. Those requests for adjournment were notsupported by affidavit evidence and were declined.14 Decision, above n 1, at [132]‒[143].15 Decision, above n 1, at [144].16 Minute dated 1 May 2023.[15] Case management directions were also made for the filing and service ofwritten submissions. Mr Mutsamwira failed to file and serve any written submissionsfor this hearing.[16] When this hearing was called this morning at 10.00 am Mr Mutsamwira wasnot present in court. I waited for some five minutes before hearing from Mr Brittonand then proceeded to commence a judgment.[17] At approximately 10.20 am Mr Mutsamwira appeared in court and I heardfrom him. He asserted he is unable to proceed today because he has not been able toprepare on account of his continuing issues with cubital tunnel syndrome. Heindicated that the pain is such in both hands (both hands suffer from the condition)that he has not been able to complete documents or preparation.[18] I have indicated to Mr Mutsamwira I am not adjourning the hearing on thataccount, having refused previous applications. Mr Mutsamwira has been unable toprovide any affidavit evidence to support the proposition that he has been unable tosatisfactorily prepare for today, whether on his own or with the assistance of others inpreparing submissions. The fact is he has filed no submissions whatsoever, despite anability when necessary to provide email communications and the like to the Court.The nature of the proceeding is such that it has to be dealt with and there is no properbasis for its further adjournment.[19] Notwithstanding Mr Mutsamwira's failure to file submissions, I have takeninto account the additional document he filed in this proceeding called "Addendum toapplication to seek leave to appeal". The matters raised in that document are mattersI will come to.The legal frameworksThe test for leave[20] The granting of leave to bring a second appeal (under s 245 of the Act) involvesa high threshold which in practice requires the applicant to identify the question of lawthat:(a) is capable of bona fide and serious argument; and(b) ought to be submitted to the High Court because of its general andpublic importance or any other reason.17[21] It has been recognised by this Court that the leave requirement indicatesParliament's intention to limit second appeals to cases that would clarify the law anddetermine its proper construction.18Humanitarian grounds under s 207 of the Act[22] Section 207(1) of the Act identifies the limited circumstances in which theTribunal may allow an appeal against liability for deportation based on humanitariangrounds, the provision being:207 Grounds for determining humanitarian appeal(1) The Tribunal must allow an appeal against liability for deportation onhumanitarian grounds only where it is satisfied that—(a) there are exceptional circumstances of a humanitarian naturethat would make it unjust or unduly harsh for the appellant tobe deported from New Zealand; and(b) it would not in all the circumstances be contrary to the publicinterest to allow the appellant to remain in New Zealand.[23] The Supreme Court in Ye v Minister of Immigration identified the threeingredients that an appellant must therefore establish.19 As correctly identified by theTribunal in the Decision, the three ingredients are:20(a) exceptional circumstances;(b) of a humanitarian nature; and17 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721at [8]; Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [45].18 Singh (Shivdev) v Chief Executive of the Ministry of Business, Innovation and Employment [2018]NZHC 972, [2018] NZAR 1120 at [26], citing Waller v Hider [1998] 1 NZLR 412 (CA) at 413.19 Ye v Minister of Immigration, above n 11, at [34].20 Decision, above n 1, at [88].(c) that would make it unjust or unduly harsh for the person to be removedfrom New Zealand.[24] The requirement of "exceptional circumstances" under s 207(1)(a) means thecircumstances must be well outside the normal run of circumstances found indeportation cases generally.21[25] For exceptional humanitarian circumstances to render deportation "undulyharsh" more than the element of harshness that is common with deportation isrequired.22[26] The determination of whether the circumstances render deportation "unjust" or"unduly harsh" is a matter for assessment by the decision-maker and will turn on howcompelling or persuasive the exceptional circumstances are.23 The harshness must gobeyond the level regarded as acceptable in order to preserve the integrity of NewZealand's immigration system.24Mr Mutsamwira's proposed grounds of appealMr Mutsamwira's fear of the risk of persecution in Zimbabwe[27] By this ground, Mr Mutsamwira asserted the Tribunal erred in finding his fearfor his safety if returned to Zimbabwe did not constitute a humanitarian circumstanceof an exceptional nature as contemplated in Ye.25[28] The Tribunal summarised this ground of Mr Mutsamwira's appeal as follows:26He would be at risk of persecution in Zimbabwe because of his previousprotest act against ZANU-PF, while a member of the MDC, which had led tohis being assaulted, threatened, and detained by the authorities. Further, "[a]person in [his] circumstances, who has attained professional qualificationsabroad, [not] returned for a long time and shown little interest in the country,will be put [in] the spotlight". There is currently a particular crackdown onthe political opposition and critics of the government given that the elections21 Ye v Minister of Immigration, above n 11, at [34].22 At [8].23 At [38].24 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [8].25 Ye v Minister of Immigration, above n 11, at [34].26 Decision, above n 1, at [68](e).are next year. There are reports of ZANU-PF carrying out acts such askillings, torture, and abductions. He has no recognisable name and so, ifharmed, this would attract no public attention.[29] The Tribunal considered this ground of appeal under a heading "Risk ofpersecution" in the following passage:27[110] The appellant is concerned that he may be persecuted by ZANU-PFand/or government-controlled security forces on returning to Zimbabwe fortwo reasons. First, due to his previous protest activity in Zimbabwe as amember of the MDC, which had led to his being assaulted, threatened anddetained by the authorities. Second, Zimbabwean citizens who have lived inWestern countries for a lengthy period of time, obtained professionalqualifications outside Zimbabwe, and have demonstrated little interest inZimbabwe, tend to be viewed with suspicion on their return.[111] The appellant provided articles and news releases reflecting thevolatile and unsafe political environment in Zimbabwe and human rightsabuses. He submits that the government is increasingly cracking down onopponents and critics in the lead up to the 2023 national elections as confirmedby, for example: S Nyoka "Dozens Injured in Zimbabwe Political Skirmishes"BBC News (19 October 2022). In a more recent article produced by theappellant it was reported that the chairperson of the MDC Alliance partyopposes the forced return of Zimbabwean citizens who had left the countryand have had their subsequent refugee claims denied because Zimbabwe isnow perceived to be safe. The chairperson says that the country remains anunsafe place to live due to government abuses, including the silencing ofcritics and neutralisation of the opposition, and adds that "bloodshed" isanticipated at the time of the 2023 elections.[112] The Tribunal finds that the appellant has not produced any reliable orobjective evidence in support of his concern that people in circumstancessimilar to him, who have lived in a Western country for an extended period oftime, obtained professional qualifications, and have demonstrated littleinterest in Zimbabwe, tend to attract adverse attention from the governmentand/or authorities on their return.[113] With respect to the appellant's claimed protest activity in Zimbabwe,the respondent questions whether this claim has been made out by theevidence and can be accepted as credible. The Tribunal is prepared to givethe appellant the benefit of the doubt, for the purposes of this assessment only.It is not difficult to accept that, as a young person living in a large city inZimbabwe who was opposed to the government, he may have attendedprotests in and around his time as a tertiary student.[114] The Tribunal acknowledges that government-controlled securityforces in Zimbabwe have a history of suppressing protests and committingatrocities against those who are actively or perceived to be opponents of thegovernment, and that remains the case to this day (as per the countryinformation provided by the appellant and see also the Australian Departmentof Foreign Affairs and Trade (DFAT) DFAT Country Information Report:27 Decision, above n 1.Zimbabwe (19 December 2019) at pp25–26 and the United States Departmentof State 2021 Country Reports on Human Rights Practices: Zimbabwe(12 April 2022) at pp1–2 and 21-22). The appellant's account of how he wastreated during protests is consistent with the heavy-handed tactics employedby security forces in Zimbabwe when responding to opposition protests.[115] However, the Tribunal finds that there is no reliable evidence tosuggest that ZANU-PF or the security forces have any enduring interest in theappellant because of his historic attendance at protests. He says that he wasreleased without charge on both occasions that he was detained followingprotest activity. He has not suggested that, when he left Zimbabwe in 2003,he was wanted by the authorities for any particular reason. He reports thatneither ZANU-PF nor the authorities have made any enquiries with his familyas to his whereabouts over the approximately 19 years that he has been livingoutside Zimbabwe. He does not know if there would be anyone in Zimbabwewho would even remember that he had engaged in protests as a young manand notes that he is no longer a member of the MDC.[116] The Tribunal accepts that ZANU-PF and the security forces under itscontrol have persecuted opponents and critics and political violence isincreasing as the 2023 elections approach. However, the appellant is not anactive critic or political opponent of the government and his involvement inanti-government protests is now historic and there is no evidence of anylingering adverse interest in him. Based on the evidence as presented, theTribunal finds that the risk of the appellant being specifically targeted byZANU-PF and/or its security forces on returning to Zimbabwe is entirelyspeculative and so can be accorded limited weight.[30] Accordingly, the Tribunal concluded the assertion that Mr Mutsamwira wouldbe at risk of persecution in Zimbabwe was, on the basis of the evidence presented,entirely speculative and capable of being given limited weight.Mental health issues[31] The Tribunal summarised this ground of Mr Mutsamwira's appeal as follows:28He has benefited from the receipt of therapeutic input in New Zealand. If hereturned to Zimbabwe, he may experience a "serious mental health crisis" and,if this progressed to suicidal ideation, this could carry severe consequences.Given mental health services have been shunned and are poorly understood inZimbabwe, it would be difficult for him to access appropriate support there.Given these mental health concerns, deportation to Zimbabwe would be"grossly inhumane" and would breach section 9 of the New Zealand Bill ofRights Act 1990, which states that "[e]veryone has the right not to be subjectedto torture or to cruel, degrading, or disproportionately severe treatment orpunishment". He also references the "equivalent" provisions in theInternational Covenant on Civil and Political Rights (ICCPR) (Article 7) andEuropean Convention on Human Rights (ECHR) (Article 3). With respect to28 Decision, above n 1, at [68](d).the latter, he notes and provides a copy of the decision AM (Zimbabwe) vSecretary of State for the Home Department [2020] UKSC 17, [32] The Tribunal considered this ground of appeal, under a heading "Concernsabout accessing psychological support in Zimbabwe", in the following passage:29[104] The appellant wants to continue receiving counselling on a long-termbasis and he is worried that, on returning to Zimbabwe, he may experience a"serious mental health crisis" which could put his safety at risk. While hewould likely be able to access spiritual counselling, as he does in NewZealand, he is not certain about counselling with a trained counsellor. Henotes that, when he lived in Zimbabwe, there was stigma attached to mentalhealth issues and therapeutic interventions. He does not know the extent towhich this stigma remains but, through conversations with his family, heknows that they continue to see no value in mental health treatment.[105] The appellant believes that requiring him to return to Zimbabwe,when he holds concerns about his ability to access appropriate mental healthsupport there, would be "grossly inhumane" and in breach of section 9 of theNew Zealand Bill of Rights Act 1990 [106] The Tribunal notes that the appellant is having a relatively modestnumber of counselling sessions with his trained counsellor, Mr Odgers. Theyhave had nine sessions from the time the appellant was released on parole(July 2021) to the date of the appeal hearing (October 2022) (or nine sessionsover a period of 15 months). Mr Odgers has not indicated how long hebelieves the appellant would benefit from continuing to receive counselling.[107] The Tribunal finds that there is no medical evidence to support theappellant's claim that, on returning to Zimbabwe, he may experience a"serious mental health crisis". To the extent that he wishes to receivecounselling with a trained counsellor, it has not been demonstrated by anyobjective evidence that he would be unable to access professional therapeuticservices in Zimbabwe.[108] The Tribunal queried whether the appellant could continue to havesessions with Mr Odgers on a long-distance basis, given that they havepreviously had some sessions over the telephone, but the appellant was notcertain whether Mr Odgers would agree or whether this would be anaffordable option.[109] There is no evidential basis to the appellant's claim that deporting himto Zimbabwe, in the context of the above concerns that he has raised, wouldbe "grossly inhumane" and in breach of his rights under section 9 of the NewZealand Bill of Rights Act 1990 or, indeed, the provision from which thissection originated — Article 7 of the ICCPR.[33] Accordingly, the Tribunal concluded there was no medical evidence to supportthe claim that Mr Mutsamwira would experience a serious mental health crisis if he29 Decision, above n 1.returns to Zimbabwe, and there was no evidential basis to support the suggestion thatdeportation would be in breach of s 9 New Zealand Bill of Rights Act or of Article 7International Covenant on Civil and Political Rights (ICCPR), or that deportationwould be "grossly inhumane". Those conclusions were reached because:(a) Mr Mutsamwira had not provided medical evidence to support hisclaims; and(b) there was no objective evidence to show he would be unable to accessprofessional therapeutic services in Zimbabwe or, on a long-distancebasis, from his New Zealand counsellor.Bringing together those considerations[34] Having reviewed all the circumstances relied upon by Mr Mutsamwira in hisappeal, the Tribunal then had regard to the cumulative impact of all thosecircumstances, including:30(a) his health needs and worries about managing his mental health andaccessing counselling services in Zimbabwe; and(b) his fears of persecution in Zimbabwe.[35] In relation to the grounds relied upon on this leave application, the Tribunalrepeated that the evidence did not demonstrate Mr Mutsamwira would be unable toaccess medical, counselling or emotional support in Zimbabwe if he seeks suchsupport.31 The Tribunal similarly repeated that the risk of Mr Mutsamwira beingspecifically targeted by ZANU-PF or Zimbabwe security forces was entirelyspeculative.30 Decision, above n 1, at [125].31 Decision, above n 1, at [127].[36] Cumulatively, neither those two matters nor the other matters relied upon byMr Mutsamwira in his appeal persuaded the Tribunal there were exceptionalhumanitarian circumstances.32[37] The Tribunal also observed that, had exceptional humanitarian circumstancesbeen established, it would not have been unjust or unduly harsh for Mr Mutsamwirato be deported.33Mr Mutsamwira's case[38] Mr Mutsamwira, in his addendum which I have referred to, asserts that theTribunal was in error in finding that neither Mr Mutsamwira's fears for his safety norhis mental health issues were humanitarian circumstances of an exceptional nature interms of the decision in Ye.34 He further asserts that the safety of persons in his positionand his mental health are matters of general and public importance in New Zealand.[39] In his addendum, in relation to the application to seek leave to appeal,Mr Mutsamwira also asserts the Tribunal committed a procedural error in relation tothe availability of Mr Mutsamwira's counsellor as a witness. That ground clearlyrelated to the review application Mr Mutsamwira was contemplating but did not fileso I take it no further here.Submissions for the Minister[40] Mr Britton filed, as timetabled, detailed submissions. I have taken those intoaccount in the discussion I will now come to.Discussion[41] The decision reached by the Tribunal in relation to Mr Mutsamwira's sixidentified bases of appeal, which I have set out above, concluded that none of thegrounds were established and, in any event, there would be no injustice or unduehardship. Significantly, Mr Mutsamwira now implicitly accepts the Tribunal was32 Decision, above n 1, at [129].33 Decision, above n 1, at [131]-[143].34 Ye v Minister of Immigration, above n 11.entitled to reject four of those alleged bases. That leaves the focus on risk ofpersecution and mental health.[42] I have set out the Tribunal's reasoning and conclusions relating to the fear andsafety ground. As I have noted, the Tribunal concluded Mr Mutsamwira's fears inrelation to persecution were entirely speculative as considered on the evidencepresented. The reasoning by which the Tribunal reached that factual conclusion isclearly set out in the relevant passages of the Decision at [110] to [116].[43] Debate as to the evidential conclusion reached by the Tribunal is about the factsas determined in the Decision, not the application of the law. There was no relevanthumanitarian circumstance to consider in relation to the risk of persecution becausethe evidence did not establish such risk. Leave to appeal cannot be granted in relationto that ground because the ground relates to the Tribunal's underlying factual findings.[44] I have also set out above the Tribunal's reasoning and conclusions relating tothe mental health ground. As I have noted, the Tribunal concluded Mr Mutsamwirahad not provided evidence to establish he might suffer a serious mental health crisis ifreturned to Zimbabwe. Similarly, there was no evidential basis to supportMr Mutsamwira's claim that his deportation would, because of a mental healthcondition, be grossly inhumane.[45] The reasoning by which the Tribunal reached those factual conclusions isclearly set out in the relevant passages of the Decision at [104] to [109]. As with therisk of persecution ground, debate as to the evidential conclusion reached by theTribunal is about the facts as determined in the Decision, not the application of thelaw. There was no relevant humanitarian circumstance to consider in relation tomental health because the evidence did not establish Mr Mutsamwira's assertion thathis return to Zimbabwe would result in a mental health crisis.[46] Leave to appeal cannot be granted in relation to these grounds because thegrounds of appeal relate to the Tribunal's underlying factual findings.Outcome[47] The application for leave to appeal is dismissed.Costs[48] Having delivered the foregoing judgment orally, I invited submissions on costs.Mr Britton seeks costs for the Minister on a 2B basis without a certificate for secondcounsel, together with disbursements.[49] I explained to Mr Mutsamwira that costs normally follow the event in relationto an application such as this, and I have explained that 2B represents essentially amiddle approach to the awarding of costs. Mr Mutsamwira indicates, understandably,that he had not prepared for submissions in relation to costs.[50] I am satisfied the appropriate order is that Mr Mutsamwira pay costs on a 2Bbasis together with disbursements.[51] I accordingly order Mr Mutsamwira to pay costs to the Minister on a 2B basistogether with disbursements to be fixed by the Registrar.Osborne JSolicitors:Crown Solicitor, WellingtonCopy to:Saymore MutsamwiraCopy to: A Lawson/N White