XX (EUROPEAN UNION) v THE MINISTER OF IMMIGRATION [2019] NZHC 112

XX (EUROPEAN UNION) v THE MINISTER OF IMMIGRATION [2019] NZHC 112 [11 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-1908[2019] NZHC 112BETWEEN XX (EUROPEAN UNION)ApplicantAND THE MINISTER OF IMMIGRATIONRespondentHearing: 10 and 13 December 2018, 1 February 2019Appearances: Applicant in personS P Connolly and E G R Dowse for RespondentJudgment: 11 February 2019JUDGMENT OF LANG J[on application for leave to appeal against a decisionof the Immigration and Protection Tribunal]This judgment was delivered by me on 11 February 2019 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] XX is a citizen of Finland. He arrived in New Zealand in February 2018 afterhaving absconded whilst on leave from a mental hospital where he was receivingcompulsory treatment. The following month the immigration authorities in NewZealand served him with a notice advising him that he was liable for deportation.[2] XX appealed to the Immigration and Protection Tribunal (the Tribunal) againstthe notice based on humanitarian grounds. In a decision delivered on 10 August 2018,the Tribunal determined that XX could not establish exceptional circumstances of ahumanitarian nature sufficient to permit him to remain in New Zealand.1 XX seeksleave to appeal to this Court against the Tribunal's decision.Background[3] In 2014, a Finnish Court determined that XX was responsible for theaggravated assault and aggravated rape of an underage girl that occurred in 2012. TheCourt held that XX was not criminally responsible for his actions by reason of mentalillness, and made an order committing him to a psychiatric hospital in Finland forcompulsory treatment.[4] In February 2018, XX was granted three days leave from the hospital. He tookthis opportunity to leave Finland and travel to New Zealand. He arrived in NewZealand on 26 February 2018 and promptly filed a claim seeking refugee andprotection status. This application was declined by a refugee and protection officer,and a subsequent appeal against that decision was dismissed by the Tribunal on 10 July2018.2[5] On 2 March 2018, XX was served with a deportation liability notice under s16 of the Immigration Act 2009 (the Act). This stated that there was sufficient reasonto deport XX because the immigration authorities had reason to believe he posed orwas likely to be a threat to public order and public interest. XX was then arrested anddetained in custody under s 313 of the Act.1 XX [(European Union)] v Refugee and Protection Officer [2018] NZIPT 503958.2 XX v Refugee and Protection Officer [2018] NZIPT 801352.[6] XX appealed to the Tribunal against his liability for deportation onhumanitarian grounds.3 The grounds he advanced in support of that appeal werelargely those he had earlier argued unsuccessfully in relation to his claim for refugeeor protected status. In a decision dated 10 August 2018, the Tribunal found that XXhad failed to establish exceptional circumstances of a humanitarian nature in terms ofthe statutory test.4 XX now seeks leave to appeal against that decision.[7] XX has not been deported to date because of the issues arising out of hisapplication for refugee and protection status, as well as the proceedings leading to thepresent appeal.The test for leave to advance a second appeal[8] The application for leave to appeal is governed by s 245 of the Act, whichrelevantly provides:245 Appeal to High Court on point of law by leave(1) Where any party to an appeal to, or matter before, the Tribunal (beingeither the person who appealed or applied to the Tribunal, an affectedperson, or the Minister, chief executive, or other person) is dissatisfiedwith any determination of the Tribunal in the proceedings as beingerroneous in point of law, that party may, with the leave of the HighCourt (or, if the High Court refuses leave, with the leave of the Courtof Appeal), appeal to the High Court on that question of law.(1A) A decision by the Court of Appeal to refuse leave to appeal to the HighCourt is final.(2) An application to the High Court under this section for leave to appealmust be made—(a) not later than 28 days after the date on which the decision of theTribunal to which the appeal relates was notified to the partyappealing; or(b) within such further time as the High Court may allow onapplication made before the expiry of that 28-day period.(3) In determining whether to grant leave to appeal under this section, thecourt to which the application for leave is made must have regard towhether the question of law involved in the appeal is one that by reasonof its general or public importance or for any other reason ought to besubmitted to the High Court for its decision.3 Immigration Act 2009, s 207(1).4 XX [(European Union)] v Refugee and Protection Officer, above n 1.(4) (5) Subject to subsection (2), every appeal under this section must be dealtwith in accordance with the rules of the court, with any modificationsnecessary to reflect the provisions of this Act, including any ancillarygeneral practices and procedures developed under section 260.[9] As will be evident from the wording of the section, an applicant for leave toappeal must demonstrate that the proposed appeal involves a question of law that, byreason of its general public importance or for any other reason, ought to be submittedto this Court for its decision.5 The question of law must be capable of both bona fideand serious argument.6[10] In Wu v Minister of Immigration, the Court of Appeal observed that the highthreshold required for an appeal under s 245 mirrored the approach that then appliedto second appeals in civil cases.7 Section 67 of the Judicature Act 1908 required asecond appeal in a civil case to raise a question of bona fide and serious argument thatinvolved an issue of sufficient importance to outweigh the resulting cost and delay.8Section 60 of the Senior Courts Act 2016 has now replaced s 67 of the Judicature Actbut the wording of the new section is virtually identical to that of s 67. This suggeststhe same approach will continue to be taken to appeals under s 245.The test the Tribunal was required to apply[11] The test the Tribunal was required to apply is contained in s 207(1) of the Act,which relevantly provides: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 nature thatwould make it unjust or unduly harsh for the appellant to bedeported 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.5 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721at [8].6 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.7 Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667.8 Waller v Hider, above n 6, at 413.[12] As the majority of the Supreme Court confirmed in Ye v Minister ofImmigration, s 207(1)(a) contains three requirements.9 The applicant must firstestablish the existence of exceptional circumstances. The term "exceptionalcircumstances" in this context means that the circumstances must be "well outside thenormal run of circumstances" and must be "truly an exception rather than the rule".10The applicant must then show that the exceptional circumstances are of a humanitariannature. Finally, the applicant must show that the exceptional circumstances wouldrender it unjust or unduly harsh for him or her to be removed from New Zealand.[13] Each of the three requirements must be established. It follows that a failure toestablish any of them will be fatal to an appeal. It will obviously not be necessary toconsider whether an applicant has satisfied the latter two requirements if he or shecannot first establish the existence of exceptional circumstances under s 207(1)(a).Grounds of application for leave to appeal[14] XX advances several arguments in support of his overall submission that theTribunal erred in law in dismissing his appeal. He failed to provide particulars of theseprior to the hearing despite being directed to do so in a Minute issued by Hinton J on10 October 2018. Notwithstanding this failure I permitted him to raise thesearguments orally at the hearing before me.[15] XX seeks to raise for the first time an issue relating to information the NewZealand immigration authorities have apparently obtained from the Finnish authoritiesthrough requests or enquiries made of Interpol. He contends that this information,which relates to details of his offending and subsequent detention in Finland, wasobtained in breach of his rights to privacy and confidentiality.[16] In large part XX's remaining arguments reflect the grounds he relied on beforethe Tribunal. These in turn largely mirrored those he had advanced unsuccessfully in9 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]-[38] per Blanchard,Tipping, McGrath and Anderson JJ (Elias CJ dissenting).10 Ye v Minister of Immigration, above n 9, at [34].relation to his application for refugee or protected person status. They are to the effectthat it would breach XX's human rights to require him to return to Finland because hewill then be confined for a further significant period in the hospital from which heabsconded. There he will be isolated from others and subjected against his will toinjections designed to treat the mental disorders that led to him being ordered toundergo compulsory treatment. He considers such treatment to be unnecessary,inhumane and unduly harsh. All of this will occur despite the fact that XX has alreadyspent a significant period in the mental hospital in Finland and in custody in NewZealand.[17] In addition, XX contends that the hospital will be motivated to keep himincarcerated because it relies upon him for income. He says a significant portion ofthe monthly benefit he receives from the government will be paid to the hospital tomeet the costs of his keep. XX says he has no option but to allow this to happen if hewishes to maintain a clean credit record. He contends, however, that it infringes hisright to pursue economic interests of his own choice and unfairly deprives him of hismeans of subsistence.[18] XX also says it would not be contrary to the public interest to allow him to stayin New Zealand because he is a skilled worker and is motivated to continue taking hismedication orally until he no longer requires it.Decision[19] The argument based on an alleged breach of XX's rights to privacy orconfidentiality cannot succeed for several reasons. First, the evidential material onwhich XX relies for this argument has not been placed before the Court. Secondly,XX did not raise the argument before the Tribunal so the Tribunal cannot be criticisedfor not taking it into account.[20] The argument would face considerable hurdles in any event. Most of theinformation allegedly obtained by the New Zealand immigration authorities wouldappear to be matters of public record and not subject to privacy or confidentialityconsiderations. Furthermore, the authorities in New Zealand had an obvious andlegitimate interest in obtaining such information after XX sought refugee andprotection status upon his arrival in New Zealand. Once that occurred, theimmigration authorities in this country would naturally wish to obtain full details abouthis background.[21] XX also sought to argue in passing that the Tribunal erred in law by referringto its earlier decision relating to his claim for refugee or protected status. He pointsout that the Tribunal was not considering an appeal under the Convention and thereforeerred by referring to the earlier appeal. This argument ignores the fact that the Tribunalreferred to its earlier decision when it summarised its factual findings in that decisionrelating to XX's continued involuntary hospitalisation and forced medical treatment.XX was advancing the same factual arguments in relation to his humanitarian appeal.It is therefore not surprising that the Tribunal referred to its earlier factual findingsregarding the same issues. The Tribunal expressly acknowledged, however, that thestatutory test in relation to an appeal based on humanitarian grounds was different tothat relating to an appeal based on a claim to refugee or protected status.11 It thenreached its decision by applying the test for the former and not the latter. TheTribunal's observations in relation to its earlier decision did not therefore amount toan error of law.[22] The remaining grounds that XX seeks to advance demonstrate that he viewsthe proposed appeal as a further opportunity to advance the same arguments that heraised unsuccessfully before the Tribunal. That is a misconception because of thelimited nature of appeal rights in the present context. He must instead show that theprocess by which the Tribunal reached its decision contained a bona fide and arguableerror of law. An error of law in this context may include applying the wrong test,taking into account an irrelevant consideration and/or failing to take into account arelevant consideration.[23] As Mr Connolly for the respondent points out, however, the Tribunal appliedthe correct test in relation to the threshold issue of exceptional circumstances becauseit referred expressly to the observations of the Supreme Court in Ye.12 It then applied11 [XX (European Union)] v Refugee and Protection Officer, above n 1, at [39].12 [XX (European Union)] v Refugee and Protection Officer, above n 1, at [22].each of the three requirements identified in Ye to the facts of the case as advanced byXX.13[24] Furthermore, all of the facts to which the Tribunal referred were plainlyrelevant to the decision it was required to make. They were also the facts on whichXX relied. It would therefore be unrealistic for him to now argue they were irrelevantto the Tribunal's decision. In addition, XX has not been able to point to any relevantfactual matter that the Tribunal failed to take into account. I therefore see no basis forany bona fide or arguable claim that the Tribunal either took into account irrelevantconsiderations or failed to take into account relevant considerations. Viewed overall,the arguments appear to challenge the outcome of the Tribunal's reasoning processrather than the validity of the process itself.[25] This leads me to conclude that the proposed appeal does not raise any genuineand arguable question of law.[26] In addition, all of XX's arguments are restricted entirely to the facts of his case.There is nothing in any of the points he wishes to raise that could have application ina wider context. It follows that the proposed appeal does not raise a question of generalor public importance sufficient to justify the resulting cost and delay of a furtherappeal.Result[27] The application for leave to appeal is dismissed.Costs[28] The respondent is entitled to costs on a category 2B basis together withdisbursements as fixed by the Registrar.Lang J13 XX [(European Union)] v Refugee and Protection Officer, above n 1, at [25]-[44].Solicitors:Crown Law, WellingtonCopy to Appellant