RAMESHI & ANOR v THE MINISTER OF IMMIGRATION [2015] NZHC 2803

RAMESHI & ANOR v THE MINISTER OF IMMIGRATION [2015] NZHC 2803 [12 November 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-000215[2015] NZHC 2803UNDER Section 245 of the Immigration Act 2009ANDIN THE MATTER of an appeal against a decision of theImmigration and Protection TribunalBETWEEN JAMILEH RAMESHIFirst AppellantMOHAMMAD NAGHIZADEHSecond AppellantAND THE MINISTER OF IMMIGRATIONRespondentHearing: 8 September 2015Appearances: D J Ryken and S Dalley for AppellantsJ Foster and N Fong for RespondentJudgment: 12 November 2015JUDGMENT OF HINTON JThis judgment is delivered by me on 12 November 2015 at 11.30ampursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors:Ryken & Associates, AucklandCrown Law, WellingtonIntroduction[1] The appellants, Ms Rameshi and her husband Mr Naghizadeh appeal againsta decision of the Immigration and Protection Tribunal ("Tribunal") dated 8 January2015 that dismissed their appeals against their liability for deportation.[2] Woolford J on 21 May 2015, granted leave to the appellants to appeal on the following question of law:Was the Immigration and Protection Tribunal wrong in law in determining that it was not unjust or unduly harsh for the appellants to be deported from New Zealand by taking into account the reasons for the issuance of the deportation liability notice (the fraudulent account given by Ms Rameshi onher initial application for refugee status and the applicants' maintenance of the fraudulent claim over a number of years)?Background[3] Ms Rameshi and Mr Naghizadeh are citizens of Iran. They married in 1980 and have three children. In Iran, Mr Naghizadeh ran a small clothing business. From about 1989, he travelled to Japan to buy clothes and videos for resale in Iran.Returning from one trip in late 1990, all of Mr Naghizadeh's stock was detainedbecause he was importing illegally. This caused him significant financial losses and left him in debt.[4] Mr Naghizadeh then worked as a taxi driver to try to repay his debts but could not do so. In late 1991, he decided to work in Japan where better money could be made. There he worked illegally as a painter and by about 1994 was able to pay off his debts. He did not however return to Iran where his wife and children wereliving, because he wanted to earn enough money to secure the family's future.[5] Being on her own, life in Iran for Ms Rameshi and the children was difficult. In 1997 she travelled to Malaysia with the three children to find an agent to get them to another country. She was told it would be hard to achieve with so many children so she returned to Iran and left her daughter behind before returning to Malaysia with just the two sons. She and her two sons arrived in New Zealand in 1997. She falsely claimed and was granted refugee status on the grounds that the Iranian authorities were said to be pursuing Mr Naghizadeh who had fled Iran. The familywas granted residence permits in 1998. Mr Naghizadeh and their daughter arrived in New Zealand in 1998. After his arrival, Mr Naghizadeh bought a large house in Auckland.[6] In 2002, the family applied for citizenship. In the course of that application, it was discovered that the family had returned to Iran for more than four months in2001. Such a visit appeared surprising in light of the family's refugee status. An investigation began by Immigration New Zealand.[7] On 22 March 2005 the family were served with notices of intended cancellation. There were difficulties in getting the appellants to interviews and in completing the process.[8] On 16 May 2007, the refugee status of each member of the family was cancelled on the ground that it may have been procured through fraud, forgery, false or misleading representation or concealment of relevant information. On 18 April 2008, the Refugee Status Appeals Authority dismissed their appeal against that cancellation.[9] Subsequently, judicial review proceedings were brought in respect of the decision to cancel the refugee status of Mr Naghizadeh and the children. By consent, the decisions cancelling the refugee status for Mr Naghizadeh and the children were set aside on 29 September 2008 on the basis that they had been improperly recognised as refugees because only Ms Rameshi had applied for recognition.[10] A lengthy period then followed in which Ms Rameshi and Mr Naghizadeh'scounsel made submissions and requests to the relevant government department to the effect that no further action should be taken against the family.[11] In about 2012 the husband and wife separated. They live on separate floors of the family home. The wife lives with the daughter and her six year old child. The husband lives downstairs with the younger son, who is 24. The other son lives separately with his family, but nearby.[12] In 28 March 2013, deportation liability notices were served on Ms Rameshi and Mr Naghizadeh. The Minister elected not to issue such notices in respect of the children, all of whom are now adults.[13] Ms Rameshi and Mr Naghizadeh appealed against the deportation liability notices to the Tribunal on humanitarian grounds.[14] Section 207(1) of the Immigration Act 2009 ("the Act") sets out the test for determining such a humanitarian appeal, as follows:207 Grounds for determining humanitarian appeal(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.(2) In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim made in accordance with section 208.[15] The appeal was heard on 10 and 11 November 2014. In its decision issued on 8 January 2015, the Tribunal found that there were exceptional circumstances but that in all the circumstances, it would not be unjust or unduly harsh to deport Ms Rameshi and Mr Naghizadeh. The Tribunal made no finding as to the public interest limb of the test.Tribunal decision[16] The Tribunal stated that the grounds of the refugee claim were false. Ms Rameshi failed to mention Mr Naghizadeh being in Japan since 1991 and claimed that he had been in Iran dealing in illegal videos, including making copies of anti-regime videos for distribution. This resulted, Ms Rameshi claimed, in theKomiteh investigating the family and Mr Naghizadeh beginning to produce anti-regime pamphlets for an organisation. When a member of that organisation was arrested in late 1995, Ms Rameshi claimed that Mr Naghizadeh fled Iran and that Ms Rameshi was detained when it was discovered she had on her illegal foreign currency which her husband had sent her. She said she was facing a court hearing, and so she also left Iran.[17] The Tribunal then addressed the culpability of the appellants. It found that the wife and husband were equally culpable in terms of the fraud. It was satisfied that Mr Naghizadeh knew Ms Rameshi was presenting a false account. It was not sensible to suggest that Ms Rameshi failed to fully inform Mr Naghizadeh, because he would face a real prospect of being questioned on the matter when he first arrived in New Zealand. The Tribunal recorded that none of the children were culpable.Exceptional circumstances of a humanitarian nature[18] Turning to whether there were exceptional circumstances of a humanitarian nature, the Tribunal took into account the following factors:(a) The family had been in New Zealand for some 16-17 years. Mr Naghizadeh had not lived in Iran for any length of time since 1991.(b) The three children are all permanently settled in New Zealand and most of the family live in the same house. The family is significantly more closely bound and interdependent than most families.(c) The appellants play an important part in caring for their granddaughter, with whom they have a close bond. The role they play makes it possible for their daughter to continue her university studies. In their absence, their daughter would be compelled to give up her studies.(d) Ms Rameshi is an insulin-dependent diabetic. There is uncertainty over the availability of insulin in Iran and there is a risk that she maybe unable to access insulin, either through lack of supply or because the market prices are beyond her reach.(e) All of the circumstances above are compounded by the lengthy nine-year delay in these proceedings. The stress has taken a heavy toll on the family emotionally and has led to the breakdown of theappellants' marriage. This factor adds complexity to the deportation process as they are likely to return to Iran as separate individuals and not as a couple who could look to each other for emotional and practical support.[19] The Tribunal found that, by a narrow margin, exceptional circumstances of a humanitarian nature were established. It held that the appellants' situation is well outside the normal run of circumstances inter alia because both parents were facing deportation, their children were not and there is an intense relationship between the parents and their granddaughter.Injustice or undue hardship[20] Under this part of the s 207 test, the Tribunal said:It is necessary to weigh the exceptional humanitarian circumstances against the adverse considerations which would militate in favour of the appellants'deportation.[21] The Tribunal identified the "primary adverse consideration" as the fraudulentpresentation of a false refugee claim, in order to secure an immigration status to which the appellants were otherwise not entitled. The fact that it was later established that Mr Naghizadeh and the children had been wrongly recognised as refugees was not overlooked. The Tribunal said that fact did not materially affect the present appeal as the grant of residence to every member of the family waspredicated upon Ms Rameshi's fraudulent refugee claim.[22] The Tribunal said there was no doubt that the fraud was serious. It noted that no mitigating factors were advanced to explain the fraud except that Ms Rameshi was determined to leave Iran. It said that the ability of genuine claimants to seekprotection against serious harm is put at risk by persons willing to manipulate the system cynically to gain residence to which they are not entitled and that by doing so, the system is brought into disrepute.[23] Another adverse consideration was Mr Naghizadeh's conviction for assault which related to an incident where he assaulted his daughter's then boyfriend. The Tribunal took the view that it was not a particularly serious matter, the offending was some time ago and there has been no further reoffending. The conviction did notweigh significantly in the Tribunal's consideration.[24] The Tribunal then assessed the humanitarian circumstances in more detail. It formed the following views:(a) The appellants were to blame for the delay up to 2008 as they presented and maintained a false account over many years. The respondent had been responsible for some periods of delay in the investigation since October 2008 and that delay had been unacceptable. However, delay of itself does not mandate a finding that deportation is unjust or unduly harsh. In this case, the delay had not given rise to any prejudice to the appellants. The delay is relevant in that it has caused stress to the appellants and they now have a greater connection to New Zealand.(b) The appellants are well-settled in New Zealand but as they are both familiar with the language, customs and culture of Iran, they should be able to adjust to Iranian life quickly. Ms Rameshi has her siblings and half-siblings in Iran who could help in her re-settlement. Mr Naghizadeh's return would facilitate his supporting his elderly and frail mother. The Tribunal accepted that finding work would be challenging for both of them, particularly so for Ms Rameshi who does not have recent work experience.(c) The Tribunal accepted that the children are well-settled in New Zealand and that it is unrealistic to expect any of them to return toIran with their parents, therefore deportation would separate the family. It also accepted that the family is particularly close. It is in thegranddaughter's best interests to have the appellants remain in NewZealand. However, the children are adults and are at the point where they can reasonably be expected to be living independent lives. The appellants were willing to live apart from the children in the past when they thought it necessary. (I note that in the husband's case this was for seven years or so). The Tribunal ultimately accepted that it would be painful and distressing for the family to be separated.(d) Regarding Ms Rameshi's diabetes, the Tribunal accepted that theavailability of insulin in Iran remains unclear. However, given that Iran is a country heavily monitored by human rights observers, the Tribunal took the view that while there are sometimes shortages anddiabetics may need to "shop around" and to pay higher prices, insulinis nonetheless available. It said this factor was not significant in its assessment.(e) The removal of the appellants may lead to the sale of the family home (owned by them) which would create some hardship for the two children who would need to find other accommodation. It would likely have the greatest effect on the grandchild, for whom it has been her home her whole life.[25] Weighing the adverse considerations against the humanitarian circumstances, the Tribunal concluded that deportation would not be unjust or unduly harsh for either appellant.[26] Having found that the first limb of s 207 was not satisfied, the Tribunal did not need to and did not turn to address the public interest limb of the test which the appellants would still have had to meet.[27] The Tribunal ordered deportation to be deferred for 12 months to allow the daughter to complete her degree with her parents' assistance. Further, the period of prohibition on entry to New Zealand was removed.Relevant law[28] Section 207(1)(a) of the 2009 Act is almost identically worded to s 47(3) of the Immigration Act 1987. It is common ground that previous case law on the correct interpretation of the humanitarian limb of s 47(3) of the 1987 Act still applies.1Courts at all levels have accepted that the s 47(3) test was a "difficult one to meet"2and was "deliberately set at a high level".3[29] The majority of the Supreme Court in Ye v Minister of Immigration held that the appropriate threshold for a finding of exceptional circumstances was as follows:4That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule.If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.Appellants' submissions[30] The essence of Mr Ryken's arguments, as is clear from the question of law on which leave was granted, is that the Tribunal erred in considering the fraudulent presentation of a false refugee claim (as the Tribunal put it), under s 207(1)(a). Theappellants argue that only humanitarian concerns ("positive and negative") should bebalanced to determine whether injustice or undue hardship arises from deportation under s 207(1)(a). Mr Ryken submits that fraud and/or the gravity of a person'soffending are public interest concerns that are only relevant to the s 207(1)(b) public interest limb. He says that, to allow the fraud matters to be considered under the first1 Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [23].2 Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [150].3 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [32].4 At [34].limb muddies the separate and sequential inquiries set out by the Supreme Court inYe and Helu and risks watering down the exceptional humanitarian circumstances.[31] Mr Ryken submits the correct approach should weigh the identified humanitarian factors, both positive and negative (as assessed under s 207(1)(a)) against the identified public interest factors (as assessed under s 207(1)(b)). He concedes that matters raised under s 207(1)(a) may "fold into" the relevantconsiderations under (b), but says that considerations under (b) cannot"fold into" (a).[32] Mr Ryken submits that at no stage during the relevant legislative history isthere any mention of a person's convictions, or other reason for their deportation liability, being a mandatory consideration when the Tribunal assesses whether it would be unjust or unduly harsh for the appellant to be deported.Respondent's submissions[33] The respondent submits that as a matter of logic, the question of whether it is"unjust or unduly harsh" for the appellants to be deported cannot be properly madein a vacuum without considering all the relevant circumstances of the individual, including the reason for the deportation.[34] The respondent submits that Mr Ryken's approach wrongly conflates the two sequential determinations required under the first limb and would effectively result in a finding of exceptional circumstances necessarily leading to a finding of injustice or undue harshness, an approach rejected by Ye. The respondent says that a factor relevant to (a) may be relevant to (b) and vice versa but where this happens they are viewed through a different lens.[35] Further, the respondent argues that s 207(2) also supports the reason for deportation being relevant both to the unjust and unduly harsh limb and the public interest limb. That subsection expressly requires submissions of any victim of criminal offending to be taken into account under both limbs, which is consistent with the nature of offending/reason for deportation being relevant to both.AnalysisQuestion of law for which leave granted[36] The arguments set out in the appellants' primary submissions can be addressed relatively briefly. Since filing of those submissions, the Supreme Court's decision inGuo v Minister of Immigration was released.5 Obiter comments in that decision strongly favour the respondent. The Court said as follows regarding the s 207 test:6The language of s 207(1) (and similar language in other provisions relating to deportation and removal) has received considerable attention in the courts.It has been held that the expression "unjust or unduly harsh" is composite innature and that the Tribunal need not inquire separately as to whether deportation would be (a) unjust or (b) unduly harsh. Whether deportationwould be "unjust or unduly harsh" is to be assessed in light of the reasonswhy the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of deportation.The public interest is not immaterial to the application of s 207(1)(a) but is primarily relevant to the application of s 207(1)(b). In determining whether deportation would be unjust or unduly harsh, the primary focus is on the personal circumstances of the person in respect of whom deportation is proposed and those of immediate family members who will be affected bythat person's deportation.(emphasis added)[37] While this passage did not form part of the ratio in Guo, the Supreme Court clearly considers (contrary to the appellants' submissions):(a) the reasons why the appellants are liable for deportation are relevant in assessing whether deportation would be unjust or unduly harsh; and(b) public interest is not immaterial to s 207(1)(a), i.e. public interest considerations can "fold into" s 207(1)(a).[38] The statements from Guo are not necessarily binding, but must carry considerable weight.5 Guo v Minister of Immigration [2015] NZSC 132.6 At [9].[39] For completeness, I refer briefly to some of the cases that the appellants havecited as supporting the argument for separate and sequential enquiries, a person'soffending being asserted as relevant only at limb (b), not at limb (a).[40] First, Jooste is not directly relevant to this appeal as that case concerned theTribunal's assessment of "exceptional circumstances" as opposed to the "unjust and unduly harsh" part of the first limb, which is the matter at issue here.7[41] In my view, Ye and Helu8 also do not assist the appellants.[42] In Ye, Tipping J said:9Whether the particular exceptional circumstances give rise to the necessary injustice or undue harshness is a matter for the assessment of the decision- maker.This is not saying that the reason for deportation is not relevant under s 207(1)(a).[43] In Helu, the Supreme Court said (contrary to the appellants' argument):[157] Accordingly, in applying s 105, the Tribunal must first decidewhether "it is satisfied that it would be unjust or unduly harsh to deport the appellant". If the Tribunal is so satisfied, it must go on to consider"whether it would not be contrary to the public interest for the appellant to remain in New Zealand". These decisions involve original inquiry bythe Tribunal. While the two tests are distinct, and the outcome on neither limb is to be determinative of that on the other, the factors relevant to each overlap. Both tests must be met before the Tribunal may quash a deportation order. The standard of proof is the balance of probabilities.(emphasis added)[44] Insofar as factors are relevant to both limbs, the Supreme Court in Helureferred to their being viewed through a "different lens".10[45] The appellants argue that Helu is not decisive on the overlapping point because of the differences between s 207 and the old s 105 that Helu considered.11 In my7 Jooste, above n 1.8 Helu v Immigration and Protection Tribunal [2015] NZSC 28.9 Ye, above n 3, at [37]-[38].10 At [157], [169]-[170].11 The now repealed s 105 of the Immigration Act 1987 allowed the Tribunal to quash a deportation order issued after conviction if it is satisfied that it "would be unjust or unduly harshto deport the appellant from New Zealand, and that it would not be contrary to the public interestto allow the appellant to remain in New Zealand". Section 105(2) set out a number ofconsiderations that the Tribunal must have regard to in deciding whether it would be unjust or unduly harsh to deport the appellant. Those considerations include the nature of the offendingand the appellants' personal circumstances.view, the absence now of a list of mandatory relevant considerations (as there was under s 105(2)), does not mean that the reason why deportation liability arose is no longer relevant under s 207(1)(a).[46] Lastly, s 207(2) clearly supports the respondent's position. That subsection requires the Tribunal to have regard to submissions of a victim both in determining whether it is unjust to deport and in considering whether it is contrary to the public interest not to deport. The subsection is a clear legislative direction that the nature of any criminal offending can be relevant to both limbs of the test. While there is no criminal offending in this case, the same approach must logically apply to dishonesty, fraud and any other reason for deportation.[47] I therefore conclude that the Tribunal was entitled, in fact obliged, to take account of the reasons for the deportation liability in determining whether deportation was unduly harsh.[48] I note that the issue of refugee status fraud may also have been relevant under s 207(1)(b), had the case reached that point. The appellants argue it would be relevant only under that subsection. However, I do not see relevance under both limbs as involving double jeopardy for an applicant, rather it reflects the difficult test set by s 207. The public interest limb is "a control on the operation of the humanitarian exception" and requires an overall judgment of the circumstances.12Further, the relevance of refugee status fraud would be weighed up (along with other points) through the different lens of public interest if and when limb (b) were reached.Points of appeal for which leave not granted[49] In supplementary submissions filed the day before this hearing, the appellants raised new points of appeal, quoted below:3. Even if the offending is brought to bear against the appellants, it should not be brought to bear in determining whether the impact on close family members is unduly harsh or unjust (to them as well as to the appellants).12 Helu, above n 8, at [169].4. The question is whether the offending has wrongly been weighed up against the family as a whole: Guo [22(d)].5. The consequences of offending on other (innocent parties) should be a s 207(1)(b) issue: Guo [22(b)].6. The justice or injustice to persons who are otherwise innocent has not been explicitly considered: Guo [22(a)].[50] These are not points on which leave has been granted.[51] Given that the Supreme Court in Guo has in large part closed down the point on appeal for which leave is granted, had the case opened new ground for the appellants I would have found a way of considering a new point or points.[52] However, the facts and the main point at issue in Guo are materially different to here. In Guo the children of a convicted drug dealer who was to be deported, had also been found liable for deportation. It was the children who sought leave to appeal. The Supreme Court granted leave to the children because of a concern that under s 207(1)(a) (whether "unjust or unduly harsh") the court had not explicitlyconsidered whether, in the absence of fault on the children's part, it was just theyface the hardship of deportation. The Supreme Court considered that in thechildren's case the consequences of the offending would be material, if at all, to s 207(1)(b), not s 207(1)(a).[53] Here the children are not liable for deportation and are not parties to the appeal. It is the offending parents who are the appellants. There is no alteration or clarification of their position, arising out of Guo. To the contrary, Guo reinforced the existing position that each deportee has to be looked at separately. The court said:13The 207(1)(a) exercise must focus on the personal circumstances of the person to be deported and in particular whether the deportation of that person would be unjust or unduly harsh.[54] In considering the position of an applicant under s 207(1)(a) the court does still have to consider the consequential hardship on their children but it is not determinative and the Tribunal did give full consideration to the interests of andeffect on the appellants' children of the appellants' deportation.13 Guo, above n 5, at [12](a).[55] I therefore do not allow leave for the new points raised and consider the points to be inapplicable to this case and/or not arguable on appeal, any error needing to amount to an error of law.Conclusion[56] The answer to the question of law for which leave was granted is no.[57] The reasons why a person is liable for deportation are relevant in assessing whether deportation would be unjust or unduly harsh.[58] The Tribunal was therefore correct when determining whether it was unjust or unduly harsh for the appellants to be deported, to take into account the fraudulent presentation of the refugee claim by the appellants.[59] This conclusion is consistent with obiter statements made in the most recent Supreme Court decision in Guo.[60] I also reject the submission that the Tribunal's approach was in conflict withthe sequential test in Helu, Ye and Jooste. Some factors will be relevant to both whether deportation would be unjust under s 207(1)(a) and to the public interest consideration under s 207(1)(b) but need to be considered in the context of the particular limb.[61] The appeal is dismissed.[62] If the respondent seeks costs, brief submissions should be filed and served within 14 days, in which event the appellants should file and serve submissions in reply within a further 14 days.___________________________Hinton J