OGOSI V THE MINISTER OF IMMIGRATION HC WN CIV-2006-485-673

OGOSI V THE MINISTER OF IMMIGRATION HC WN CIV-2006-485-673 27 April 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2006-485-673IN THE MATTER OF s117 of the Immigration Act 1987 AND IN THE MATTER OF an appeal by Tupou Ogosi against a decision by the Deportation Review Tribunal dismissing an appeal against a Deportation Order made by the Minister of Immigration dated 24 August 2004 BETWEEN TUPOU OGOSI Appellant AND THE MINISTER OF IMMIGRATION Respondent Hearing: 21 March 2007 Appearances: R J S Munro for Appellant H L Dempster and K M Howard for Respondent Judgment: 27 April 2007 In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 27th day of April 2007.RESERVED JUDGMENT OF GENDALL J[1] This is an appeal against a decision of the Deportation Review Tribunal which dismissed Mr Ogosi's appeal against a deportation order made by the Minister of Immigration on 24 August 2004. Section 117 of the Immigration Act 1987 entitles an appellant, if dissatisfied with any determination of the Tribunal, to appeal to the High Court, but on a point of law only.Factual background[2] The appellant is a Samoan citizen who came to New Zealand in October 1995. After his visitor's permit expired he did not depart and remained unlawfully in New Zealand, it seems for approximately four years. During some of that period he committed sexual offences upon a girl aged between three and seven years. The offending did not come to light until some time later. The appellant married a New Zealand citizen in April 1997 and obtained a work permit in February 2001. Upon that permit expiring he applied for a residence permit because of his marriage. He was granted permanent residence in August 2002. Upon his offending coming to light, he faced trial in the High Court at Auckland and was found guilty on one count of sexual violation by unlawful sexual connection and three of indecent assault upon a girl under the age of 12. He was sentenced on 26 September 2003 to four years concurrent imprisonment on each charge. The Judge described the offending as being:"in the category of repetitive sexual abuse in a position of trust in relation to a very young victim."[3] The Judge when sentencing the appellant referred to mitigating features such as testimonials from family, friends and others, and the fact that the appellant had no previous convictions. He added, however:"Unfortunately I cannot add to this any form of insight, remorse or desire to change."[4] The Judge had before him a report from a probation officer from the Department of Corrections setting out the usual features that such reports contain but which reiterates the appellant's contention that he had not offended and that:"All I can do is pray to God to forgive me if I have done anything wrong and to forgive the person who made the complaint against me".The probation officer said that it was:"difficult to reliably assess his motivation to address the factors that usually accompany such offending. His lack of language skills is also a barrier to any interventions that may be suggested. Mr Ogosi is a first time offender. He is assessed as being of a low risk to re-offend."[5] On 24 August 2004, after consideration of the full background, the Minister of Immigration issued a deportation order under s91(1)(a) of the Immigration Act 1987. On 5 October 2004 the appellant lodged an appeal with the Deportation Review Tribunal against the Minister's deportation order. Before the appeal was heard by the Tribunal on 19 October 2005, and a decision delivered on 22 March 2006, the appellant sought release from prison on parole on two occasions. [6] The first application for parole was in December 2004. The Parole Board declined to release the appellant. The Board on 14 December 2004 said that:"The Board's paramount concern is the safety of the community. You are an unacceptable risk of re-offending while you have neither dealt with that sufficiently in prison; or convinced us that it can be addressed on parole. Parole is declined. We will see you again when you have better support and supervision available in the community which will adequately address your offending."[7] When the further application for parole came before the Parole Board a year later on 14 December 2005, the Board had before it a report which said amongst other things that the appellant:"has not made any progress so far with regards to criminogenic programmes due to language barrier. He is currently doing numeracy and literacy courses three times a week."[8] On 7 September 2005:Mr Ogosi is still denying his offence but still would like to participate in any programmes that may be available to him.[9] It was reported that on 20 October 2005 Mr Ogosi maintained his innocence, but said he was prepared to enter any programmes aimed at addressing offending. The report stated further:"Mr Ogosi is scheduled for a meeting with the departmental psychologist prior to his upcoming Board appearance. He will need ongoing psychological counselling/assessment to motivate him into addressing his offending. A moderate-high level of CPS [Community Protection Service] supervision is required due to the fact that the offence remains unaddressed."[10] When the Parole Board considered the application and all the material before it, the Board again declined parole. It said:"While, for the moment, Mr Ogosi poses an undue risk to the safety of the community within the term of his sentence, dictating a further decline of parole, the Board will see Mr Ogosi again in the event he is assessed as suitable for a SAFE programme which can accommodate his limited English. His first language is Samoan."[11] At the time that that decision was delivered, the decision in the appeal against the deportation order had not yet been delivered.The hearing before the Tribunal[12] This proceeded on the basis of the appellant and others giving oral evidence to the Tribunal as well as submitting extensive written material. No doubt in the course of such evidence from the appellant the Tribunal was able to make its own assessment of him. The appellant was represented by counsel before the Tribunal who made careful submissions generally directed at the humanitarian factors pursuant to s105 of the Act. When dealing with the issue of public interest, counsel submitted to the Tribunal that it would not be contrary to the public interest to permit the appellant to remain in New Zealand given, according to counsel, "his assessment of re-offending as low".The Tribunal's decision[13] The Tribunal set out the background facts and summarised evidence given to it by and on behalf of the appellant. The legal submissions were then recorded, as were the submissions made on behalf of the Minister, dealing with matters such as the appellant's age, the duration of his lawful residence, his personal domestic financial circumstances, family interests, work skills, the nature of the offending and the public interest. The Tribunal referred to relying upon the sentencing notes of Fisher J on 26 September 2003, as well as the summary of facts and the Department of Corrections' (probation officer's) report. It then proceeded to analyse the aggravating and mitigating factors and said:"In addressing the fact Mr Ogosi maintained his innocence we observe that this is not uncommon in these appeals. In earlier decisions we have stated that our role in these appeals is limited to the grounds contained in s105. In other words, the basis of our jurisdiction to consider humanitarian grounds is predicated on the fact that the potential deportee has been convicted of certain offences. We cannot query the soundness of these convictions. That being the case, the Tribunal regards the offending as very serious for those reasons identified by Fisher J. These include the age of the child, the offending over a lengthy period of time and the abuse of trust. The Tribunal weighs the seriousness of the offending against the humanitarian factors later in this decision."[14] The Tribunal then thoroughly analysed family interests and other relevant considerations, concluding as to the first limb of s105 as follows:"To summarise, the key issues in the determination of this appeal are that Mr Ogosi appears before the Tribunal as a first offender, but convicted of very serious sexual offending against a small child. Against this there is evidence of substantial support within his community and family with the likelihood that if he were deported his family would not accompany him. On balance, we consider that deportation would be unduly harsh on this family. However, we must consider as part of our role under s105 whether Mr Ogosi still poses a risk of re-offending given his refusal to acknowledge his offending and address the causes of his offending through counselling or courses for rehabilitation purposes. Therefore, the pivotal issue in this appeal is whether Mr Ogosi remaining in New Zealand is contrary to the public interest which we now address."[15] Having found that deportation would be unduly harsh on the appellant's family, the Tribunal turned to consider the second limb, namely public interest. It said:"It is generally accepted that notions of public interest and safety have historically focused on the propensity or potential for the prospective deportee to re-offend. To assist us in this analysis we have given regard to two parole reports, one dated 14 December 2004 and an updated one received after the hearing in December 2005. In 2004, the Board recorded that: 'You are at an unacceptable risk of re-offending while you have neither dealt with that sufficiently in prison; or convinced us it can be addressed on parole.'"[16] The Tribunal then referred to the appellant's case being re-considered by the Parole Board in December 2005 and set out remarks contained in that report:"Since then, nothing has changed. Mr Ogosi continues to deny his offending. For so long as he remains his denial it is unlikely he will receive any criminogenic intervention either in prison or in the community. There is at least the possibility, albeit slight, Mr Ogosi might be admitted to a community-based SAFE programme. The Board leaves this option open on the basis it would be better for Mr Ogosi and the safety of the community for him to get something in the community rather than nothing in prison. While for the moment, Mr Ogosi poses an undue risk to the safety of the community within the terms of his sentence, dictating a further decline of parole, the Board will see Mr Ogosi again in the event he is assessed as suitable for a SAFE programme which can accommodate his limited English."[17] The Tribunal regarded this matter as a "significant issue". It concluded that in the absence of any other evidence to the contrary, the Tribunal "must accept" the finding of the Parole Board that Mr Ogosi remains an "undue risk to the safety of the community". So the Tribunal went on to add, in relation to public interest factors:"'the seriousness of Mr Ogosi' offending, his refusal to acknowledge his offending and the failure to address the causes' led it to conclude that it would be contrary to the public interest for the appellant to remain in New Zealand.Points of law advanced on behalf of the appellant[18] Counsel for the appellant contended that there were four points or questions of law raised in this appeal. These were: (1) The Tribunal erred in law in failing to expressly consider material evidence before it of a low risk of re-offending, so erred in assessing whether or not it was in contrary to the public interest to allow the appellant to remain in New Zealand. (2) The Tribunal erred in law in failing to reach its own independent conclusion as to whether the appellant posed a significant risk to the safety of the community and erred by saying that it was bound by a Parole Board finding made for another purpose.(3) Acceptance of the Parole Board view, without reference to time limitations as to the duration of risk amounted to or contributed to an error of law. (4) The Tribunal erred in law in failing to consider its own earlier decisions in which it had quashed Ministerial deportation orders when determining the public interest criteria.Discussion[19] The grounds upon which the Tribunal may quash a deportation order are restricted to those contained in s105, which provides:"105 Tribunal may quash deportation order(1) On an appeal under section 104 of this Act, the Tribunal may, by order, quash the deportation order if it is satisfied that it would be unjust or unduly harsh to deport the appellant from New Zealand, and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand."[20] The appeal concerns only the contended errors of law on the "public interest" question."Public interest"[21] In Prasad v Chief Executive, Department of Labour [2000] NZAR 10 McGechan J said that in considering (under the then s63B(2)) whether it would be in the public interest to cancel or reduce a removal order, it was sufficient if remaining in New Zealand would not be contrary to the public interest. If there was material upon which an Authority could reach the conclusions it made on the facts, and there were no factual errors material to the decision, this could not amount to an error of law. McGechan J observed, (at 22):"As to s63B(2)(b) 'public interest' it is to be remembered that such is to operate as a deliberate control upon the humanitarian exception, intended to prevent unacceptable levels of public harm. Traditional examplespoint to contagious diseases or unacceptable tendencies. These very personal matters are, however, no more than examples and should not be allowed to stultify statutory direction. I have little doubt that when Parliament required theAuthority to be satisfied an exception would not be contrary to the 'public interest' it expected the Authority to think in broad and protective terms. It is a comprehensive phrase.The phrase 'public interest' should not be artificially constrained."The statutory direction ought not be stultified (to use the words of McGechan J inPrasad (at 13) and the public interest is a comprehensive phrase requiring the Authority to think in broad and protective terms so as to be satisfied that an exception would not be contrary to the public interest. [22] Often, in appeals such as this, the challenge is to factual conclusions or findings, which are dressed up as points of law. The Court on appeal, must be wary, not to substitute its own views as to factual matters or the merits, as Parliament has entrusted that task to the expertise of a Tribunal well experienced in dealing with applications to set aside or to cancel deportation orders. If the Court is to interfere with the decision not to exercise a discretion, then an appellant must establish upon well recognised grounds that that is appropriate, given that the Court's powers are limited to appeals on questions of law. Questions of fact cannot be elevated to questions of law. This Court cannot revisit facts unless it can be properly contended that factual findings lack any probative evidence to the extent that an error of law has occurred; Edwards v Bairstow [1956] AC 14; [1955] 3 All ER 48. [23] The matter was aptly described by Wild J in Mohamud & Ors v Minister of Immigration HC WN AP21/98 5 October 1998 as:"Quintessentially, error of law involves the application of an incorrect legal test or a wrong answer to a legal question upon unchallenged facts. Here, an obvious example would be a Tribunal misinterpreting or misapplying relevant provisions of the Immigration Act. Under the label 'question of law' a limited incursion is now permitted into the factual area where either the Tribunal has: (1) Come to a conclusion without any evidence or upon evidence which could not reasonably support its conclusion, or (2) Failed to draw from unchallenged primary facts an inference favourable to the appellant, when such inference is the only one reasonably open. What the Court must not do under the guise of a question of law is concern itself with whether the Tribunal was right or wrong in its conclusion, i.e. with the merits of the case. Further, the weight to be given to the assessment of relevant considerations is for the Tribunal alone and not for considerationby the Court as a point of law. Recent authorities include Nicholls v District Council of Papakura [1998] NZRMA 233 at 235 and Auckland City Council v Wotherspoon [1991] NZLR 76 at 85-86."A semantic analysis, or an intricate word by word dissection, of a Tribunal's decision, in cases as this, does not help when determining appeals which must be based only on points of law. The decision has to be viewed in its entirety, bearing in mind the established expertise of a Tribunal empowered especially to review a Minister's deportation order. As Giles J in Butler v Removal Review Authority[1998] NZAR 409 noted, a decision of the Authority must be considered as a whole. The Authority has a duty to give reasons but not every piece of evidence must be traversed in detail, provided the party affected can understand the basis for the decision. In that decision, it was implicit that documents in evidence referred to by the Authority had been carefully reviewed and assessed. The Authority's expertise must be recognised so that if a decision can be supported by evidence, it is not for the Court to substitute its own view.Failure to consider evidence before the Tribunal[24] The main submission advanced on behalf of the appellant was that the Tribunal erred in law, when considering the public interest question, because it overlooked what was said to be evidence of a probation officer. This argument arises from the statement that the Tribunal "must accept this finding [undue risk to the safety of the community] in the absence of any other evidence to the contrary". The Tribunal had before it a wealth of information which included, as it had earlier noted, the report of the probation officer of September 2003. The report-writer opined that the appellant posed a low risk of re-offending, perhaps based on the fact that the appellant had no previous convictions. But this was not a "fact" nor a finding by a Tribunal or other body, but only a view offered for the purpose of sentencing, two years earlier. That view was before Fisher J when he sentenced the appellant. When looking at mitigating features, the Judge recorded that he "cannot add any form of insight, remorse or desire to change". [25] Counsel for the appellant relied upon the dicta of McGechan J in Taiaroa & Ors v Minister of Justice & Ors HC WN CP99/94 4 October 1994:"If a decision-maker ignores or acts in defiance of an incontrovertible fact, or an established and recognised body of opinion, which plainly is relevant to the decision to be made,the decision may be invalidated."[26] I do not think it can be said that a view expressed by a probation officer for sentencing purposes two years prior to the time when the Tribunal was having to consider questions of future risk and public interest, was an "incontrovertible fact". It was one view based on the information then available to the officer. The two subsequent findings of the Parole Board, upon which the Tribunal clearly relied, were made, not in a sentencing context, but in a context of assessing the appellant's suitability for early release into the community. [27] The Tribunal, dealing as it does with appeals against deportation orders following upon convictions, would be well aware of the expertise of the Parole Board, which has before it reports, up-to-date information and recommendations and assessments derived from developing matters whilst the offender is in prison. The Board assesses the prognosis of the extent of his then and future rehabilitation. The Parole Board often has before it psychological, cultural and other assessments of an inmate when considering parole applications. In the present case, by 14 December 2005 – over two years after being imprisoned – the appellant, according to the Parole Board, had still not "addressed his offending", with parole then declined again because of the ongoing risk. [28] The Tribunal came to the conclusion that (as at March 2006) there had been no evidence presented to it to rebut the finding of the Parole Board that the appellantas at that time remained an undue risk to the safety of the community. It was at that time that the relevant assessment was made. Despite considerable evidence being tendered to the Tribunal, nothing further was then presented. It is at the time of probable release, and at the time the Tribunal considered the appeal, that the issue of risk was relevant. [29] The Tribunal was entitled to say that there was an absence of any other evidence to the contrary, implicitly at that time. Simply because a probation officer had over two years earlier expressed a view prior to the appellant being sentenced, without the sort of investigation and assessments that inevitably arise before paroleapplications are heard, did not give rise to any error of law on the part of the Tribunal when it made its finding, which it summarised in [45]. The expression that the Tribunal "must accept this finding" was not in my view an abdication of the Tribunal's own task which was rather wider, namely whether it would be contrary to the public interest for the appellant to remain in New Zealand. The Parole Board's finding was a reasoned conclusion made on two occasions during the course of the appellant's sentence of imprisonment. [30] If there had been some other evidence presented to the Tribunal at the appeal touching upon the question of risk then the position would have been different. Psychological evidence of assessments could have been given such as the well known assessment tools used by health assessors relating to sex offenders, namely the SONAR and Static-AS or ASRS tests if the findings of the Parole Board as to risk were to be challenged. [31] The Tribunal, when referring the public interest factors, made it clear that there were two areas which compelled it to conclude that it would be contrary to the public interest for the appellant to remain in New Zealand. The risk of safety to the community, (arising out of refusal to acknowledge offending and a failure to address those causes) and what the Tribunal said was "the seriousness" of the offending. It did not err in law in approaching the public interest question in that way. [32] The type of crime committed by an appellant, its seriousness in terms of degree of culpability, and its repetitive nature, are all matters which may be weighed on the scales by the Tribunal when considering questions of public interest. [33] Quite apart from the finding or views of the Parole Board, the Tribunal had before it information that the appellant's repetitive offending spanned a four year time period. It commenced in 1997 when he had, as the sentencing Judge described, a "wake up call". That was not heeded and in December 1998 there was a further sexual crime against the same child. Then, between July and October 2001, repeated offending occurred – the count in respect of that period was a "representative" count. There was evidence that the appellant's offending occurred whilst intoxicated or after drinking. The probation report referred to the appellant's use of alcohol being"little" but added that it comprised "12 cans on a Saturday". Those are matters which were contained in the wealth of other material before the Tribunal. It gave sufficient reasons at the conclusion of its decision to enable the appellant to understand precisely why it was that the Tribunal concluded that it would be contrary to the public interest for the appellant to remain.Should the Tribunal have sought further information?[34] Whilst it was argued that it was open to the Tribunal to inquire further, given the limited financial resources of the appellant, so that the Tribunal ought to have obtained specific expert medical or psychological evidence of future risk, the fact that this was not done did not comprise error of law. [35] Of course, the Tribunal has powers of a Commission of Inquiry and must act judicially, and may undertake further inquiries or seek further information if it wishes. But it is not under a duty to make further inquiries of its own volition. There may be some occasions where fairness might require the Tribunal to make further inquiries but this was not one of them. The appellant, who was represented by counsel, presented a lot of evidence, and made no request that the Tribunal embark on any independent inquiry. [36] It cannot be said that the Tribunal erred in law in this respect."Applicable time period for the Parole Board's findings[37] Counsel argued that the Tribunal erred in accepting the Parole Board's findings because those were said to be "for the moment" and "within the terms of his sentence". Counsel pointed to a number of factual, or evidential, matters which he said could be weighed in favour of the appellant and argued that the Parole Board's findings should not have determined the deportation outcome. [38] As I have said, the Tribunal did not abdicate its task to the Parole Board – as is apparent from its reasoning in its para [46].[39] On the "time limitation point", inevitably any opinion as to future risk must be predictive. It relates only in a strict sense to the moment at which it is made but looks to the future. And the Tribunal had before it the predictive view of the Parole Board as at December 2005 at the time it considered the appeal. I do not think that it is open, in the absence of any evidence being tendered before the Tribunal, to the appellant to contend there was error of law on the part of the Tribunal in accepting that evidence at the time it was available. As the Tribunal said in para [46], the continued refusal to acknowledge offending and the failure to address its causes, together with its seriousness, implicitly led it to conclude that the appellant remained an undue risk to the safety of the community. This aspect of the appeal does not involve a question, or error, of law.Like and fair treatment[40] Counsel submitted that the Tribunal was required to afford like treatment to like cases, and reliance was placed upon authorities such as Patel v Chief Executive, Department of Labour [1997] 1 NZLR 102, 111. It was submitted that "relativity of treatment by the Tribunal" was a requirement when it determined questions of public interest. So, too, it was argued that there was a requirement of "fairness" in the Tribunal reaching a decision on the public interest. [41] Naturally, as counsel submitted, similar treatment for similar offending in the sense of consistency is implicit, but deportation orders deal with individual offenders, all with unique personal circumstances. The difficulty with counsel's submission is in determining what cases are truly similar. Naturally, like should be treated with like. But criminal offending and offenders span an infinite variety of circumstances. In the context of immigration policy and requirement matters, most individual situations are unique and decisions must be fact specific. And in this case what was to be decided was whether this offender posed no unacceptable risk to the community so as to make it not contrary to the public interest for him to remain in New Zealand. The question was "offender specific". [42] Nothing was presented to me to suggest that repetitive sexual offending by a person on a young child over several years, where a risk to the community was saidto continue to exist if the offender remained in New Zealand, has inevitably led to a deportation order being quashed. There may be some instances when that has happened, just as undoubtedly there will be other instances where the Minister's order in such situations has been implemented. Concepts of "general fairness" in this specialised area, where rarely, if ever, two cases are the same, are not that helpful in deciding the final outcome. [43] I adopt with respect the remarks of Gallen J in Northern Roller Milling Co Ltd v Commerce Commission [1994] 2 NZLR 747 at 754:".I do not think that the field is so wide open that some broad concept of fairness can be used to justify interfering with a decision which merely gives rise to perhaps a general unease or distaste. Such an approach runs the risk of merely substituting one opinion for another and allowing the Court to make a decision which has been reposed in other hands."Generally[44] The Tribunal's decision as a whole has to be considered in determining whether there was error of law. It had before it a wealth of material supporting the appellant and indeed found in the favour of him and his family on the question of deportation being "unduly harsh". It did not err in observing that it had in the past looked at the potential for a prospective deportee to re-offend. This had to be an important factor in determining questions of "public interest". It had various reports, finding of the Parole Board, remarks of the sentencing Judge, oral and documentary evidence from the appellant and his supporters, before it delivered a comprehensive and well-reasoned decision. [45] The appellant was represented by counsel before the Tribunal and did not seek an adjournment to present further information. He was able to give evidence and shape his appeal, as he thought fit. The Tribunal was not required to augment a view of some cases in the manner now contended. The Tribunal is not obliged to accept expert evidence, but in doing so did not abrogate its decision-making, when there is no other substantial evidence as to the current risk assessment. The Tribunal was entitled to accept the opinion of the Parole Board to assist it in determining questions of public interest, the Board reports being simply "evidence", as theTribunal states. An opinion expressed two years earlier by a probation officer for the purpose of sentencing, likely to be based upon the absence of earlier convictions, could not be an assessment made as to risk in December 2005. [46] The Tribunal weighed up the seriousness of the sexual offending over a period of time, the appellant's failure to address its causes, and his refusal to acknowledge wrongdoing, as being crucial factors leading the Tribunal to accept the Parole Board's finding or evidence as to risk to safety to the community. This Court cannot substitute its view as to the weight to be given to such evidence. [47] Finally, I was advised from the Bar of events or circumstances since the delivery of the Tribunal's decision in March of 2006, but as counsel for the respondent correctly submitted those are not matters which the Court is entitled or required to consider when determining whether the Tribunal erred in law in delivering its decision. If the subsequent matters are of such moment or significance as to enable the Minister to reconsider his deportation order, the power for the Minister to give a special direction pursuant to s130 of the Act remains. [48] It has not been shown that the Tribunal erred in law in delivering its decision of 22 March 2006. It must follow that the appeal is dismissed.. J W Gendall JSolicitors: Munro-Law, Wellington for Appellant Crown Law Office, Wellington for Respondent