Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162; [2016] 3 NZLR 721; [2016] NZAR 662 (2 May 2016)

Last Updated: 1 February 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA673/2015 [2016] NZCA 162
BETWEEN	KOJI MACHIDA Applicant
AND	CHIEF EXECUTIVE OF IMMIGRATION NEW ZEALAND Respondent

Hearing:	18 April 2016
Court:	Harrison, Wild and Kós JJ
Counsel:	G Aulakh for Applicant C P Paterson and N J Small for Respondent
Judgment:	2 May 2016 at 12.30 pm

JUDGMENT OF THE COURT

A The application for leave to appeal is declined.

2. The applicant must pay the respondent’s costs for a standard application for leave on a band A basis, together with usual disbursements.

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REASONS OF THE COURT

(Given by Kós J)

[1] Mr Machida is a Japanese national who has lived and worked in New Zealand for ten years. His work visa has expired and he is liable for deportation. The Immigration and Protection Tribunal said there were no exceptional humanitarian reasons why he should not be deported. He wishes to appeal the Tribunal’s decision.
[2] The High Court refused leave to appeal. He now applies to this Court for leave.

Factual background

[3] Before living in New Zealand, Mr Machida lived in Australia. In 2004, he overstayed his Australian work visa and was detained. He was granted a bridging visa and permitted to depart Australia.
[4] Then in May 2005 he came to New Zealand on a visitor visa, valid until August 2005. He was then granted a work visa, valid until October 2014. He applied for another work visa in September 2014, which was declined by Immigration New Zealand (INZ) on 17 October 2014. He then became unlawfully in New Zealand and liable for deportation. His attempt to challenge INZ’s decision in the High Court was unsuccessful, and he does not take that issue any further.
[5] To avoid deportation liability, Mr Machida sought a special visa under s 61 of the Immigration Act 2009 (the Act), which may be granted to anyone unlawfully in New Zealand.^[1] On 20 November 2014 INZ refused that request, and Mr Machida again became liable for deportation. He appealed to the Immigration and Protection Tribunal against his deportation liability on humanitarian grounds under s 207. The Tribunal dismissed the appeal on 15 May 2015.^[2]
[6] Mr Machida applied in the High Court for leave to appeal against the Tribunal’s decision. Hinton J declined leave on 29 October 2015.^[3]

Application for leave

[7] Mr Machida now applies to this Court for leave to appeal to the High Court against the decision of the Tribunal of 15 May 2015. The relevant leave provision is s 245 of the Act:

245 Appeal to High Court on point of law by leave

(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.

...

(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.

...

[8] In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:

• (a) has importance extending beyond the particular case (which is what “general or public importance” entails); or
• (b) for some other reason, warrants a decision from the High Court.

Although category (b) is open ended, we agree with a series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.^[4]

Proposed grounds of appeal

[9] Mr Machida submits there are five errors in the Tribunal’s approach which warrant the granting of leave. His submissions were to some extent directed at supposed errors by the High Court Judge. For the purposes of this application, the question is whether the Tribunal erred. There is no right of appeal against the decision of the High Court refusing leave.^[5] Recast therefore, the proposed grounds of appeal are these:

• (a) The Tribunal misdirected itself at para [2] of its decision on the relevant exceptional humanitarian considerations. It failed to consider wider exceptional circumstances.
• (b) The Tribunal failed to consider the severe consequence that Mr Machida will be unable to ever re-enter New Zealand because he has been excluded from Australia.^[6]
• (c) The Tribunal failed to give Mr Machida an opportunity to comment on prejudicial material presented by INZ, namely that he had not disclosed his Australian immigration history at the time of applying for resident status in New Zealand. It is a question of law of public importance whether the Tribunal followed the requirements of s 230 of the Act to disclose prejudicial information.
• (d) The Tribunal should have considered that Mr Machida was not obliged to disclose his Australian immigration history because it fell within the terms of the Criminal Records (Clean Slate) Act 2004.
• (e) Finally, the Tribunal failed to have regard to articles 12 and 13 of the International Covenant on Civil and Political Rights (ICCPR), which prescribe the principle of freedom of movement and a prohibition on expulsion of aliens without due process of law. The Tribunal similarly failed to identify that it was exceptional for a deportation liability notice to affect Mr Machida’s livelihood permanently.

Analysis

[10] We are satisfied that none of the points demonstrates an arguable error of law and that none involves a matter of general or public importance.
[11] First proposed ground: The Tribunal did not misdirect itself in our view. Paragraph [2] of the Tribunal decision is a summary of the grounds of appeal presented, not a misdirection. The Tribunal went on to apply the correct test for humanitarian considerations outlined by the Supreme Court in Ye v Minister of Immigration, which requires circumstances well outside the normal run and which are truly exceptional.^[7] The Tribunal considered the evidence and submissions put forward. At [16] and [19]–[25] of its decision it addressed the wider consideration mandated in Ye. It did not confine itself to the grounds summarised at [2] of its decision.
[12] Second proposed ground: The Tribunal was plainly entitled to find that a permanent prohibition of Mr Machida from re-entry into New Zealand was not a truly exceptional circumstance of a humanitarian nature, but rather something in the normal run of events. It is the ordinary consequence of his having (apparently) been excluded from Australia, so that he falls within the ambit of s 15(1)(f) of the Act. In any event, we record Ms Paterson’s submission that Mr Machida will not be permanently prohibited so long as he departs New Zealand prior to service of a deportation order, and that he may still seek a special direction from the Minister under ss 17(1)(b) and 378 of the Act.^[8]
[13] Third proposed ground: Immigration New Zealand had notified Mr Machida of the information it held as to his exclusion from Australia. He had already responded to that material. It is evident from [20] of the decision that that information was not material to the Tribunal’s decision. Instead it focused, correctly, on whether exceptional humanitarian considerations existed. We agree with Ms Paterson that s 230 of the Act was not engaged in these circumstances.
[14] Fourth proposed ground: The fact Mr Machida lacks a criminal record is not an exceptional circumstance. The Criminal Records (Clean Slate) Act 2004 is of no significance here. Even if what happened in Australia amounts to a “conviction”, which is unlikely, the Act only applies to convictions “entered by a court in New Zealand”.^[9]
[15] Fifth proposed ground: The restriction on Mr Machida’s freedom of movement (ICCPR, art 12) is a consequence of his being denied a work visa. The lawfulness of that denial decision (ICCPR, art 13) was open to challenge by judicial review within the timeframe prescribed by the Act. Mr Machida did not seek judicial review of the decision denying a work visa within time. Hinton J declined an application for an extension of time. That aspect of the High Court decision is not challenged.

Result

[16] The application for leave to appeal is declined.
[17] The applicant must pay the respondent’s costs for a standard application for leave on a band A basis, together with usual disbursements.

Solicitors:
G Bogiatto, Auckland for Applicant
Crown Law Office, Wellington for Respondent

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^[1] His wife Mrs Machida also sought a special visa. Her application and subsequent appeal to the Tribunal and request for leave to appeal to the High Court were unsuccessful, and she does not challenge matters further.

^[2] Machida and Machida [2015] NZIPT 502161–162.

^[3] Machida v Chief Executive of Immigration New Zealand [2015] NZHC 2649.

^[4] Taafi v Minister of Immigration [2013] NZAR 1037 at [19(c)]; Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [8]–[9]; Cao v Immigration and Protection Tribunal [2014] NZHC 259 at [12]; Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [54]–[55]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [9]; Liu v Minister of Business, Innovation & Employment [2014] NZHC 3074 at [9]; Fu v Chief Executive of the Ministry of Business, Innovation & Employment [2014] NZHC 3346 at [23]; CV v Immigration and Protection Tribunal [2015] NZHC 510 at [78]; Ali v Minister of Immigration [2015] NZHC 1794 at [32]; Chan v Minister of Immigration [2015] NZHC 2036 at [26].

^[5] Simes v Tennant [2005] NZCA 80; (2005) 17 PRNZ 684 (CA) at [39].

^[6] This is due to s 15(1)(f) of the Immigration Act 2009.

^[7] Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].

^[8] Sections 17(1)(b) and 378(2)(a) of the Act.

^[9] Criminal Records (Clean Slate) Act 2004, s 4, definitions of “conviction” and “criminal record”.