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Helu v Immigration and Protection Tribunal [2013] NZCA 276 (3 July 2013)

Last Updated: 12 July 2013

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 First Respondent
AND
 Second Respondent
Hearing:
20 May 2013
Court:
Ellen France, Wild and Ronald Young JJ
Counsel:
A Schaaf for Appellant No appearance for First Respondent J Foster for Second Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The appeal is dismissed.
  2. Costs are reserved.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No
Introduction [1]
Factual background [4]
The statutory provisions [13]
The Tribunal’s decision [15]
The decision of the High Court [21]
Issues on appeal [22]
Approach to art 12 (freedom of movement) [24]
The submissions on appeal [25]
Our assessment [27]
Articles 17 and 23 (protection of the family) [37]
The competing contentions [39]
Discussion [41]
The impact of Mr Helu’s youth [54]
A formulaic approach? [57]
Conclusion [63]

Introduction

[1] Samuela Helu is a 22-year-old Tongan man who has lived most of his life in New Zealand. The Minister of Immigration ordered that he should be deported from New Zealand after his conviction of a qualifying offence under s 91(1)(c) of the Immigration Act 1987 (the Act) within five years after first being granted residence.
[2] Mr Helu appealed unsuccessfully against the Minister’s order to the Immigration and Protection Tribunal (the Tribunal). The Tribunal concluded that although it would be unjust or unduly harsh to deport Mr Helu, it would be contrary to the public interest to allow him to remain in New Zealand.[1] Mr Helu then sought judicial review of the Tribunal’s decision. Toogood J dismissed the application for judicial review.[2] Mr Helu appeals to this Court.[3]
[3] The appeal raises issues about the adequacy of consideration of various provisions in the International Covenant on Civil and Political Rights (ICCPR)[4] and of the approach to the “public interest” test in s 105 of the Act.

Factual background

[4] There is no dispute about the facts. What follows is taken from the description in the judgment of Toogood J.[5]
[5] Mr Helu is a Tongan citizen but has lived in New Zealand with his parents and siblings since the age of six. He was unlawfully in New Zealand for the period for 13 September 1997 to 2 March 2001. He was granted a student permit on 3 March 2001 and a residence permit on 23 April 2003. Mr Helu went to school in Tonga for approximately six months in 2004 and 2005.
[6] At the age of 17 (January 2008), Mr Helu and some associates stole several packets of cigarettes from a convenience store. Mr Helu pulled out what appeared to be a small black pistol which he thrust in the face of the storekeeper and then fired twice. The gun was not real. Mr Helu admitted his role in the offending and was charged with aggravated robbery.
[7] In the pre-sentence report of 22 January 2009, Mr Helu was assessed as presenting a low risk of reoffending. However, while on bail pending sentence on the aggravated robbery charge, he committed further offences of threatening behaviour, disorderly behaviour and being unlawfully in an enclosed yard (on 15 February 2009), and common assault and assault with intent to rob (on 17 April 2009).
[8] Mr Helu was sentenced to two years imprisonment on the aggravated robbery charge.[6] When sentenced in November 2009 in respect of the violent offending committed on 17 April 2009, he received a further 12 months imprisonment.[7]
[9] At the time of the initial offending, Mr Helu had held a residence permit for less than five years. As a result, he became subject to the discretion of the Minister of Immigration to order his deportation under s 91(1)(c) of the Act. A deportation order was issued on 17 March 2010 and served on Mr Helu on 9 April 2010.
[10] Mr Helu’s appeal against the deportation order was made on the grounds that it would be unjust or unduly harsh to deport him due to the length of time he had been in New Zealand, his age, and the fact his immediate family were in New Zealand. It was also alleged that it would not be contrary to the public interest if he was allowed to remain in New Zealand. The Tribunal heard Mr Helu’s appeal on 14 and 15 April 2011. Mr Helu was given leave to file further evidence after the hearing. That evidence included a report from a clinical psychologist, Mr Greg Woodcock, in which Mr Helu was assessed as representing a moderate risk of reoffending in a violent manner. The Tribunal’s decision confirming the deportation order was issued on 25 August 2011.[8]
[11] After Toogood J dismissed the application for judicial review, Mr Helu successfully sought a stay of the deportation order.[9]
[12] We turn now to the relevant statutory provisions before discussing the approaches taken by the Tribunal and the High Court.

The statutory provisions

[13] Section 105(1) of the Act relevantly provides that on an appeal, the Tribunal may quash a 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.

[14] In deciding whether or not it would be unjust or unduly harsh to deport the appellant the Tribunal shall have regard to a number of matters, namely:[10]

(a) The appellant’s age:

(b) The length of the period during which the appellant has been in New Zealand lawfully:

(c) The appellant’s personal and domestic circumstances:

(d) The appellant’s work record:

(e) The nature of the offence or offences of which the appellant has been convicted and from which the liability for deportation arose:

(f) The nature of any other offences of which the appellant has been convicted:

(g) The interests of the appellant’s family:

(h) Such other matters as the Tribunal considers relevant.

The Tribunal’s decision

[15] The Tribunal described its task in the following way. It took as the starting point the offence which prompted the deportation order and the sentence imposed. The Tribunal said it then followed a balancing exercise. That required:

[7] ... weighing the seriousness of the offending giving rise to the deportation order and any other offending, with the compassionate factors favouring the appellant remaining in New Zealand, having particular regard to the matters set out in section 105(2) above: M v Minister of Immigration [HC Wellington AP84/99, 17 August 2000 at] [9]; Phillpott v Chief Executive of the Department of Labour (HC, Wellington CIV2005485713, 21 October 2005) per Ronald Young J at [69]–[70].

[16] The Tribunal reviewed the evidence it had heard from the appellant, his parents and two siblings. The Tribunal concluded that it would be unjust or unduly harsh for Mr Helu to be deported. The Tribunal then considered the public interest limb of s 105 observing that an “important” factor in the assessment of the public interest was the “degree of risk posed by the appellant in terms of his reoffending in like manner”.[11]
[17] The evidence before the Tribunal on this aspect included an updated report from a psychologist, Mr Woodcock, to whom the appellant was referred by his counsel. Mr Woodcock’s conclusion was that Mr Helu posed “a moderate risk of further violent behaviour/offending”. After considering all of the evidence before it, the Tribunal concluded that there was no basis to depart from Mr Woodcock’s assessment of a moderate risk of reoffending.
[18] The Tribunal then addressed the submission for the appellant that it was nonetheless not contrary to the public interest for him to remain in New Zealand, “when balanced against the compassionate features relating to his family situation”.[12]
[19] The Tribunal accepted that the social benefit of protecting family unity was a public interest. The Tribunal also noted New Zealand’s obligations in relation to family life. However, the right to family life was not absolute. The Tribunal continued:

[74] ... Whether the rights of the appellant and his family would be breached depends on whether the appellant’s deportation is reasonable, that is proportionate and necessary in the circumstances: see the United Nations’ Human Rights Committee General Comment 16 (8 April 1988) and the discussion in Toonen v Australia (Communication No 488/192 UN Doc CCPR/C/50/D/488/1992, 4 April 1994) and Madafferi v Australia (Communication No 1011/2001, UN Doc CCPR/C/81/D/1011/2001, 26 August 2004, at 9.8). See also Nofoaiga v Minister of Immigration DRT Decision No 11/2009 (6 April 2009) at [75]–[79].

[20] The Tribunal said it had to weigh the “positive public interest considerations” concerning the appellant’s separation from his family against the public interest in removal of a person who, because of his violent offending, “poses an unacceptable risk to public safety”.[13] The Tribunal was not satisfied that it would not be contrary to the public interest to allow the appellant to remain in New Zealand. Accordingly, the Tribunal confirmed the deportation order.

The decision of the High Court

[21] Toogood J was satisfied from the Tribunal’s careful approach that it gave appropriate weight to the matters it was required to consider in weighing the various public interest factors under the second limb of s 105(1). The Judge was also satisfied that the Tribunal’s treatment of New Zealand’s international treaty obligations was appropriate in the circumstances of the case. The Judge considered, in particular, that the Tribunal gave proper attention to Mr Helu’s youth in assessing the risk of reoffending and in concluding that the risk posed in this case justified confirmation of the deportation order.

Issues on appeal

[22] The parties are agreed that the issues to be determined on the appeal are:
[23] We deal with each of these issues in turn.

Approach to art 12 (freedom of movement)

[24] Article 12 of the ICCPR provides as follows:

The submissions on appeal

[25] The appellant says the High Court erred in not referring to his argument that the Tribunal was wrong not to consider art 12(4). The argument is that the recent jurisprudence shows that art 12(4) can apply to a person who is not a citizen of the country from which they are to be deported. Particular reliance is placed on the decision of the United Nations Human Rights Committee in Nystrom v Australia.[14] We will come back to the facts of that case shortly.
[26] The second respondent submits that art 12(4) is not relevant to this case because it protects the right of New Zealand citizens to enter New Zealand and Mr Helu is not a New Zealand citizen. Rather, he is a citizen of Tonga. In any event, Ms Foster submits that the United Nations Human Rights Committee has only in rare cases involving exceptional facts accepted that a non-citizen of the deporting country could invoke the protection of art 12(4).

Our assessment

[27] A more expansive approach to the interpretation of art 12(4) is apparent in the recent jurisprudence. The relevant passage of the United Nations Human Rights Committee’s General Comment on art 12(4) as it relates to non-citizens reads as follows:[15]

5. The Covenant does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.

[28] In the New Zealand context, the relevant statutory provisions giving effect to art 12(4) confine the protection they afford to New Zealand citizens. Section 18(2) of the New Zealand Bill of Rights Act 1990 states that “[e]very New Zealand citizen has the right to enter New Zealand”. Similar language is adopted in s 3(1) of the Act which provides that:[16]

For the purposes of this Act, every New Zealand citizen has, by virtue of that citizenship, the right to be in New Zealand at any time.

[29] It is not necessary to attempt to definitively state the extent, if any, to which an expanded view of art 12(4) might affect the interpretation of the relevant New Zealand statutory provisions. That is because we accept the submissions for the second respondent that, to the extent that art 12(4) applies to protect persons who are not New Zealand citizens, its relevance would be limited to those cases where the combination of circumstances puts the persons being deported into an exceptional category. The Nystrom case relied on by the appellant illustrates that proposition.
[30] In concluding that art 12(4) applied to Mr Nystrom, the United Nations Human Rights Committee said that art 12(4) encompassed, “at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien”.[17] However, the features of Mr Nystrom’s case demonstrate what will be necessary to show there are “special ties”.
[31] Stefan Nystrom was born in Sweden. His mother, having migrated to Australia with his father, had returned for a visit to Sweden with Mr Nystrom’s sister. Mr Nystrom travelled to Australia with his mother when he was 25 days old and remained there. He was described as having “few” ties with Sweden having never learned the Swedish language or had any direct contact with family members there.[18]
[32] Mr Nystrom’s visa was cancelled in 2004 after he had been convicted of various offending. The offending began when he was aged 10 and included an aggravated rape when he was 16. He was committed to the care of the State at age 13. Mr Nystrom grew up believing he was an Australian citizen.
[33] In addition to these facts, the Committee also took into account the fact that the decision to deport him was taken almost 14 years after his conviction for rape and over nine years after his release from prison at a time when he was in a process of rehabilitation.
[34] In a dissenting opinion, two members of the Committee said they agreed with the Committee’s earlier jurisprudence on art 12(4) which maintained a relationship between the right and the concept of nationality. The dissenting members considered the majority approach was one mentioned, but not endorsed, in the Committee’s General Comment No 27.[19] The opinion continued:[20]

On the peculiar facts of the present case, we can imagine a very limited conclusion that the author should be treated like a national of Australia because the authorities ... failed to secure naturalization for him when he was an adolescent under state guardianship.

[35] In Mr Nystrom’s case, it was really happenstance that he was born in Sweden. Mr Helu, by contrast, spent his early childhood in Tonga and returned there for schooling, albeit for a brief period, in 2004 and 2005. He has familiarity with the Tongan language and has family there. He was also, again fairly briefly, in New Zealand unlawfully for a period. The feature in Nystrom of lengthy delay before the decision to deport was made is also lacking in his case. For these reasons, we do not consider that art 12(4) assists Mr Helu.
[36] It is not surprising that the Tribunal did not refer to art 12(4) because its application to Mr Helu was not a matter specifically raised with the Tribunal. That may have explained the omission to consider the point in the High Court. In any event, as we shall discuss further, the appellant’s youth, the fact that he had been in New Zealand for most of his life, and the nature of the offending were factors considered by both the Tribunal and the High Court.

Articles 17 and 23 (protection of the family)

[37] Article 17 provides as follows:

(1) No-one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.

[38] Article 23(1) deals with the protection of the family. The article provides:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The competing contentions

[39] The argument for Mr Helu is, first, that it was necessary to consider these articles under both limbs of the s 105 test. Secondly, the submission is that serious reasons are required before a person in Mr Helu’s circumstances can be deported. The absence of such reasons in his case means that the Tribunal and the High Court were wrong not to conclude that deportation was an arbitrary interference with his family life.
[40] Ms Foster submits that the Tribunal approached this issue correctly. The protection afforded to family life in the ICCPR was considered and the Tribunal approached this issue by considering the relevant test being that adopted by the United Nations Human Rights Committee. Ms Foster notes also that the High Court Judge concluded that the Tribunal gave “such weight as was appropriate” to the relevant matters.[21]

Discussion

[41] We deal first with the argument that arts 17 and 23 were relevant also to the assessment of the public interest.
[42] The answer to this argument is that the Tribunal accepted that what may be called humanitarian concerns may be relevant in assessing the public interest. Hence, the Tribunal accepted the social benefit of protecting the family is a public interest. The Tribunal then saw its task as weighing public interest factors telling against deportation against those favouring deportation. Obviously, at that stage, the Tribunal was making an assessment of where the public interest lay.
[43] The approach to this part of the s 105 and other, similarly worded, tests in the immigration context has been considered in a number of cases. The following principles emerge:
[44] The Tribunal’s approach was consistent with these authorities. In our view there can be no criticism of the Tribunal’s description of its task.
[45] We turn then to the argument that deportation would constitute an arbitrary interference with Mr Helu’s family life. This part of the argument for Mr Helu relies on jurisprudence in relation to art 8 of the European Convention on Human Rights[27] as well as that concerning arts 17 and 23 of the ICCPR.
[46] The first of the decisions relied on by the appellant is Maslov v Austria.[28] That decision dealt with art 8 of the European Convention which states that there is to be no interference with the right to respect for family life except “such as is in accordance with the law and necessary in a democratic society”.
[47] The European Court of Human Rights, in assessing what was necessary in a democratic society, set out a number of criteria to be used where the person to be deported is a young adult. Those criteria are as follows:[29]
[48] The Court saw the age of the person concerned as relevant when applying some of these criteria. For example, the Court said that when assessing the seriousness of the offending, it was necessary to consider whether the individual committed the offences as a juvenile or as an adult. The position was summarised in this way:

[75] ... for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile.

[49] The Court in considering Mr Maslov’s case saw as “decisive” the fact that he was between 14 and 15 years old at the time of the offending and, further, that with one exception the offences were non-violent in nature.[30] The violent offence was characterised as still being an act of “juvenile delinquency”.[31]
[50] The same approach was applied in Balogun v United Kingdom, also relied on by the appellant.[32] The point made in Warsame v Canada,[33] the third of the cases relied on by the appellant, was that deportation could be regarded as an arbitrary interference with family life if, “in the circumstances of the case, the separation of the [individual] from [the] family ... [was] disproportionate to the objectives of removal”.[34]
[51] The first point to make in relation to these cases is that the analysis required by s 105 captures the sorts of factors identified in these decisions. The real issue is whether the High Court was correct that they were properly considered by the Tribunal. As to that, the Court in Maslov acknowledged that the weight to be given to the various criteria will vary according to the circumstances, a point also made by Toogood J in this case.
[52] That the Tribunal did consider the Maslov type factors is apparent, first, from the Tribunal’s reasoning for its conclusion that it would be unjust or unduly harsh to deport Mr Helu. We adopt Toogood J’s description of the principal factors leading to that conclusion, namely:[35]

(a) [Mr Helu’s] age (20 at the time of the decision) and his parents’ view that he is relatively immature;

(b) the length of time [Mr Helu] has lived in New Zealand compared to the relatively short period of residence in Tonga and his relative lack of familiarity with Tongan culture;

(c) [Mr Helu’s] personal and domestic circumstances, including his previous abuse of alcohol and cannabis and his efforts to rehabilitate himself;

(d) the effect of permanent separation from his immediate family and the distressing impacts, on [Mr Helu] and his family, of the loss of direct contact;

(e) the absence of any clear means of financial support for [Mr Helu] given the strained financial circumstances of his only relatives in Tonga and the limited ability of his immediate family in New Zealand to provide financial support for him. The Tribunal considered, however, that Mr Helu is a young healthy man capable of working so that in time he could be expected to find some form of employment;

(f) adapting to life in Tonga without his family would be challenging for [Mr Helu], particularly considering his history of addiction to alcohol, self-destructive behaviour and his lack of confidence in social interactions.

[53] Then, in determining where the public interest lay, the Tribunal considered the impact on family life. The length of time the appellant has been in New Zealand as a public interest factor manifests itself in the right to the protection of family life. The remaining issue is whether at this point in its assessment, the Tribunal also had to consider again the impact of Mr Helu’s youth and, in particular, the effect of that on the seriousness of the offending. We turn now to that issue.

The impact of Mr Helu’s youth

[54] The submission for Mr Helu is that in assessing the public interest, the Tribunal was required to factor in again Mr Helu’s youth and how that impacted on the assessment of the seriousness of the offending. Ms Foster’s submission is that the focus is properly placed on the objective seriousness of the offending and the risk that it poses. It was not necessary for the Tribunal or the High Court to go further.
[55] It appears to us that the case for the appellant has not been put in quite this way until now. That said, we do not consider the Tribunal was required to go beyond the matters it did consider. As has been described in the previous section, the seriousness of the offending was a matter properly taken into account in the Tribunal’s assessment that deportation would be unduly harsh.
[56] Importantly, the appellant does not challenge either the assessment of his risk of reoffending which takes the nature of the index offending into account or the reasonableness of the decision to uphold the deportation order. Mr Woodcock, in preparing the risk assessment, records Mr Helu’s family details and personal history. Mr Woodcock was plainly aware of Mr Helu’s age at the time of his offending. Indeed, one of the risk assessment tools he uses includes 10 factors, one of which is “young age” at the time of the first violent offending. We add that there is no evidence that Mr Helu’s youth would have the effect of reducing his risk of reoffending. We see no error in approach in this respect.

A formulaic approach?

[57] The appellant’s final argument is that the Tribunal’s decisions in other cases show that where a person has a moderate or higher risk of reoffending, the Tribunal will uphold the deportation order. That approach may well, in the appellant’s submission, be appropriate in the majority of cases involving adult criminal offenders, but is not appropriate in the present case. Ms Foster in response says the approach taken was not formulaic because there was a careful consideration of the nature of Mr Helu’s offending and of the risk he posed.
[58] It is necessary to consider the Tribunal’s reasoning. The Tribunal treated the appellant’s “degree of risk” of reoffending in a similar manner as an “important factor in the assessment of the public interest”.[36] The Tribunal went on to say that the degree of risk of future offending the public can be expected to tolerate “varies according to the severity of the offending”.[37] The Tribunal put it in this way:

[63] ... There is a sliding scale, in that the more serious the crime, the lower the chance of reoffending that triggers an adverse public interest finding.

[59] In Mr Helu’s case, the Tribunal noted that the index offending was the aggravated robbery. The Tribunal acknowledged that while serious, it was not at the higher end of the scale and that it did not result in actual injury although the victim was distressed by the threat of violence. The Tribunal continued:

[64] ... The further two incidents which resulted in additional sentences of imprisonment involved threatening behaviour and assault. Again, they are not in the most serious category, but did involve unprovoked verbal and physical aggression. All his offending occurred while [Mr Helu] was heavily intoxicated. [Mr Helu] also has a history of, mainly minor, offending throughout his teenage years.

[60] Accordingly, the Tribunal concluded:

[65] Given the nature of [Mr Helu’s] violent offending, ... only a degree of risk at the low end of the scale would suffice to preclude the public interest being engaged.

[61] The Tribunal then considered the various materials available on the risk posed by the appellant before concluding that Mr Woodcock’s assessment of a moderate risk of reoffending in a violent way was accurate.
[62] We do not see any difficulty in the way in which the Tribunal has approached this matter. The analysis appears consistent with the approach in cases like Maslov where a distinction is made between offending of a violent nature and non-violent offending. We agree with the appellant that it would not be satisfactory if the Tribunal’s approach did not allow consideration of the particular case before it but that criticism cannot be made of the Tribunal in this case.

Conclusion

[63] Ultimately, the appellant has not shown any error in approach by either the Tribunal or the High Court. We accept that the decision to deport him may appear a harsh one especially given the factors he now emphasises. The Tribunal acknowledged that. However, the Tribunal has properly considered the relevant matters and was entitled to conclude that the public interest was against Mr Helu remaining in New Zealand. The High Court was correct to uphold that decision. For these reasons, the appeal is dismissed.
[64] We reserve costs. If the parties are not able to agree on costs, memoranda may be filed by the second respondent by 15 July 2013 and from the appellant by 22 July 2013.




Solicitors:
Fergusson Tuilotolava, Manukau City for Appellant
Crown Law Office, Wellington for Second Respondent

[1] Helu v Minister of Immigration [2011] NZIPT 500056; Immigration Act 1987, ss 105(1) and (2).

[2] Helu v Immigration and Protection Tribunal [2012] NZHC 1270, [2012] NZAR 688.

[3] The first respondent abides the decision of the Court.

[4] International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).

[5] At [6]–[14].

[6] He was also sentenced to short terms of imprisonment on the February 2009 charges: R v Helu DC Auckland CRI-2008-004-1746, 20 May 2009.

[7] Police v Helu DC North Shore CRI-2009-044-3502, 27 November 2009.

[8] Helu v Minister of Immigration, above n 1.

[9] Helu v Immigration and Protection Tribunal (No 2) [2012] NZHC 2128, [2012] NZAR 889.

[10] Immigration Act, s 105(2).

[11] At [62].

[12] At [72].

[13] At [75].

[14] Human Rights Committee Views: Communication No 1557/2007 CCPR/C/102/D/1557/2007 (2011) [Nystrom v Australia].

[15] Human Rights Committee CCPR General Comment No 15: The Position of Aliens Under the Covenant 27th sess (1986); see also Human Rights Committee CCPR General Comment No 27: Freedom of Movement (Art 12) CCPR/C/21/Rev.1/Add.9 (1999); and the discussion in M Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (2nd revised ed, NP Engel, Kehl, 2005) at [52]–[58].

[16] See also Immigration Act 2009, s 13(1).

[17] At [7.4] (footnote omitted).

[18] At [2.2].

[19] CCPR General Comment No 27, above n 14.

[20] At [3.6] per Mr Neuman and Mr Iwasawa.

[21] Helu v Immigration and Protection Tribunal, above n 2, at [47].

[22] Prasad v Chief Executive of the Department of Labour [2000] NZAR 10 (HC) at 22; Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [158]; and O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599, [2012] NZAR 1033 at [42].

[23] See the discussion in Mwai v Removal Review Authority [2000] NZAR 206 (CA) at 212.

[24] Garate v Chief Executive of Department of Labour HC Auckland CIV-2004-485-102, 30 November 2004 at [41]; Zanzoul, above n 22, at [157] and [178]; and O’Brien, above n 22, at [43]. This Court in Minister of Immigration v Al-Hosan [2008] NZCA 462, [2009] NZAR 259 at [38] described the test in s 105(1) as a “unitary” one.

[25] O’Brien, above n 22, at [43].

[26] Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [44].

[27] Convention for the Protection of Human Rights and Fundamental Freedoms ETS 5 (opened for signature 4 November 1950, entered into force 3 September 1953).

[28] Maslov v Austria (1638/03) Grand Chamber, ECHR 23 June 2008.

[29] At [71].

[30] At [81].

[31] At [81].

[32] Balogun v United Kingdom (60286/09) Section IV, ECHR 10 April 2012.

[33] Human Rights Committee Views: Communication No 1959/2010 CCPR/C/102/D/1959/2010 (2011) [Warsame v Canada].

[34] At [8.7].

[35] At [16].

[36] At [62].

[37] At [63].

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