NGUYEN V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV 2006-485-2255

NGUYEN V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV 2006-485-2255 9 May 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2006-485-2255IN THE MATTER OF the Immigration Act 1987 AND IN THE MATTER OF of an appeal against a decision of the Removal Review Authority pursuant to s.115A of the Immigration Act 1987 BETWEEN VAN QUANG NGUYEN Appellant AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent Hearing: 9 May 2007 Appearances: J S Petris for Appellant G A J Stanish & K M Howard for Respondent Judgment: 9 May 2007ORAL JUDGMENT OF MILLER J[1] The appellant is a Vietnamese citizen who arrived in New Zealand on 27 February 2002. His last permit expired on 31 July 2005, and he then appealed to the Removal Review Authority against the requirement that he leave New Zealand. He now appeals from the Authority's decision.The law[2] The appeal before the Authority could be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow him to remain:s.47(3) of the Immigration Act 1987. The appellant was obliged to ensure that all information, evidence and submissions that he wished to have considered were received by the Authority within the prescribed period: s.50(2)(a), (b) and (c). [3] Speaking of the predecessor to s.47(3), the Court of Appeal in Patel v RRA[2000] NZAR 200, 204 held:Section 63B appeals start from the premise that the appellants are in New Zealand unlawfully and are seeking an exemption. The stringent statutory wording, "exceptional circumstances of a humanitarian nature ...unjust or unduly harsh", using strong words imposes a stern test. In its natural usage, "exceptional circumstances" sets a high threshold necessarily involving questions of fact and degree. Associated in the test under the paragraph is that it be "unjust or unduly harsh" to remove on that account. It is a composite test and the whole picture is to be viewed, both circumstances and effects; and as part of that whole picture, the effects on others as well as the person removed may require consideration.[4] An appeal to this Court is confined to a question of law. The Court will not revisit factual findings unless it can be properly argued that they lack supporting evidence such that an error of law has occurred: Butler v Removal Review Authority[1998] NZAR 409. A difference of opinion as to the weight to be accorded to a relevant consideration is not an error of law unless founded on a misunderstanding of the statutory language.The Appeal[5] The appellant raises four points. They are: a) Whether the Authority interpreted and applied s.47 in a manner consistent with Article 23(1) of the International Covenant on Civil and Political Rights, which states:The family is the natural and fundamental group unit of society and is entitled to protection by society and the states.b) Whether the Authority property applied the test in Patel v RRA; in particular, whether it failed to consider the appellant's circumstances as a whole but rather focused on the individual factors.c) Whether the Authority's findings on the issue of public interest are unsound. d) Whether the Authority took an unreasonable view of a "clear police certificate" issued by "the justice authorities" in Vietnam. [6] Mr Petris acknowledged that the third of these issues addresses the merits of the Authority's decision. It falls to be considered, in his submission, only if he succeeds on any of the other issues and this Court is willing to substitute its own decision.Breach of Article 23(1)[7] Mr Petris' submission is that the Authority erred in law in concluding that there was no breach of Article 23(1). He contended that the Authority was wrong to conclude that there will be no separation of the appellant's family as his wife, who is also of Vietnamese origin, can travel to Vietnam. This was said to be unsound because she was accepted in New Zealand as a refugee, and there is an issue of proportionality; that is, whether the harm to the marriage will outweigh the harm to New Zealand of his remaining here. [8] The submission admits a brief answer. The Authority examined the impact on the appellant's family with care, including not only his wife with whom, as the Authority acknowledged, he has a genuine and stable relationship, but also his 19 year old step-son who is in New Zealand. (His other children are still in Vietnam.) The Authority found that his wife is freely able to return to Vietnam; indeed, she did so (to marry him) in 2000, when she spent three months there. It rejected her contention that she was at risk if she returned to Vietnam, noting that her case for resettlement in New Zealand disclosed no past persecution or problem with the Vietnamese government, and that she had fled Vietnam as long ago as 1989. These findings were available to the Authority on the evidence, and I decline to revisit them in the guise of a question of law. The Authority then reasoned that any separation that occurred should he be removed from New Zealand would be due to her decision to remain here and would not be a necessary consequence of hisremoval. In so reasoning, it followed Puli'uvea v RRA [1996] 14 FRNZ 322 andJiuming v Department of Labour [1998] NZAR 219. I can see no error of law in this approach. [9] This ground of appeal fails.Application of the test in Patel v RRA[10] I have set out the relevant passage from the Court of Appeal decision in Patelabove. Mr Petris contended that the decision compels the Authority to consider the appellant's circumstances as a whole, and not to focus on the individual factors. He contends that the Authority failed to do so. [11] I am inclined to agree with the respondent that the submission rests on a misunderstanding of Patel. It is clear that when the Court of Appeal spoke of a composite test requiring that the whole picture be viewed, it was referring to the statutory requirement that there be "exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh". The Crown was emphasising that both circumstances and effects had to be considered as a whole. [12] However, this appeal does not turn on the meaning of the judgment in Patel, for it is clear that the Authority did in fact look both at the individual considerations and the appellant's circumstances as a whole, considering the effects as it did so. The individual circumstances relied upon were his marriage, the standard of living in New Zealand compared to that in Vietnam, and the position of his step-son. It then considered these matters collectively in reaching its decision that there were not exceptional circumstances. It held in paragraph 87 that it had considered all aspects of the circumstances as disclosed to it and that, taken collectively, there were no exceptional circumstances of a humanitarian nature that would render removal unjust and unduly harsh.The unreasonable view of the clear police certificate[13] The appellant provided a clear police certificate in support of his residency application, but it was false. As was subsequently conceded, he had prior convictions which were uncovered when the Immigration Service made inquiries. [14] This ground of appeal rests on a second clear certificate which was obtained from Vietnam in response to an inquiry from the Authority. The Authority placed no weight on the document for it found that the appellant had conceded that he did indeed have convictions in Vietnam. In its decision, it recorded these convictions along with his explanations, some of which amounted to denials of guilt. [15] Mr Petris contended that the Authority was wrong to discount the second certificate in this manner. In my view, such submission is entirely without substance. It was open to the Authority to discount it for the good reason that he did have convictions and had admitted to them. It properly took into account his explanations and excuses as it evaluated them. This ground of appeal also fails.Decision[16] That is sufficient to dispose of the appeal, which is dismissed. F Miller JSolicitors: J S Petris, Wellington for Appellant Crown Law Office, Wellington for Respondent