O'Brien v Immigration and Protection Tribunal [2012] NZHC 2599; [2012] NZAR 1033 (11 October 2012)

Last Updated: 30 October 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-0821 [2012] NZHC 2599

BETWEEN BIO TALAKATOA O'BRIEN Applicant

AND IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

AND MINISTER OF IMMIGRATION Second Respondent

Hearing: 1 October 2012

Counsel: M S Smith and N R Woods for Applicant

No Appearance for First Respondent (abides Court decision) C A Griffin for Second Respondent

Judgment: 11 October 2012

_{JUDGMENT OF SIMON FRANCE J}

BIO TALAKATOA O'BRIEN V IMMIGRATION AND PROTECTION TRIBUNAL HC WN CIV 2012-485-

0821 [11 October 2012]

Introduction

[1] Mr O’Brien challenges, by way of judicial review, a decision of the

Immigration and Protection Tribunal to confirm a deportation order against him.1

Facts

[2] In April 2009 Mr O’Brien was involved in a car accident. He became enraged with the elderly driver of the other vehicle. He accosted him physically and forcefully. The conclusion of the assault was a forcible push which caused the victim to fall over backwards. The victim hit his head, and died from the injuries. Mr O’Brien pleaded guilty to manslaughter.

[3] Mr O’Brien was sentenced to three years’ imprisonment. The Parole Board was never satisfied about amelioration of the risks Mr O’Brien posed, and accordingly Mr O’Brien served the full sentence.

[4] Mr O’Brien is 31 years old. He was born in Tuvalu and came to New Zealand as a scholarship student in 2000. Mr O’Brien attended Otago Polytechnic. Upon leaving, he obtained work as a welder and progressed to being a plant operator. In 2006 he married a New Zealand citizen, and in September 2006 the couple’s daughter, M, was born. Shortly before the incident that led to his incarceration, he had returned to study.

[5] Mr O’Brien had been granted New Zealand residence under the Partnership policy in October 2008. At that point he had lived in New Zealand about eight years. On 5 July 2010 the Minister signed a deportation order.

Tribunal decision

[6] The Tribunal’s jurisdiction came from ss 104 and 105 of the Immigration

Act 1987.2 Section 105 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.

[(1A) Without limiting subsection (2), in deciding whether it would be unjust or unduly harsh to deport the appellant from New Zealand, and whether it would not be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim, in accordance with section

105A.]

(2) In deciding whether or not it would be unjust or unduly harsh to deport the appellant from New Zealand, the Tribunal shall have regard to the following matters:

(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.

[7] The Tribunal concluded first that deportation would not be unjust or unduly harsh. Although that was determinative of the appeal, the Tribunal also went on to assess the public interest limb. It concluded it would be contrary to the public interest to allow the appellant to remain in New Zealand. This means that even if Mr O’Brien had succeeded on the initial unjust or unduly harsh inquiry, the deportation order would nevertheless have not been quashed.

[8] In relation to undue hardship, the Tribunal followed the now orthodox approach of first identifying the seriousness of the offence.3 The Tribunal, relying on the sentencing remarks of Potter J,4 noted it to be an appalling case of road rage. The event had attracted significant publicity at the time, and continued to be referred to with abhorrence. The Tribunal also noted that Mr O’Brien had previous convictions for violence – male assaults female, and threatening to kill or do

grievous bodily harm. Both charges stem from the same April 2001 incident. The Tribunal also referred to evidence that Mr O’Brien was prone to outbursts of road rage or to what was described as outbursts of violence within the marriage.

[9] Having identified these factors the Tribunal moved to the humanitarian circumstances. In this regard, it is appropriate to cite the relevant paragraphs:

[110] Against this, the Tribunal must weigh the humanitarian circumstances of the appellant and his family which have been reviewed above. The appellant is from Tuvalu and spent his first 19 years in that country. He is totally familiar with the country and its language. While it will be difficult for him to find employment on return, there is no reason to doubt that he could sustain himself in the same manner as his father and brothers are doing and have done all their lives in Tuvalu.

[111] It is highly unlikely that his wife and child would accompany him, but they may visit him in the future. He has some temporary accommodation available to him with his father and family. He clearly has the physical ability, skills and training to work at a whole range of occupations and activities in Tuvalu if the opportunities arose. At his age and with his abilities, he will be able to care for himself in Tuvalu at a far higher level of capacity than the vast majority of Tuvaluans. His separation, from his New Zealand wife and their child, is the most serious consequence of deportation for him.

3 See for example, Oto v Minister of Immigration HC Wellington CIV 2008-485-2183,

13 March 2009, Gendall J; and M v Minister of Immigration HC Wellington AP 48/99,

_{17 August 2000, Goddard J.}

4 R v O’Brien HC Auckland CRI 2009-004-11941, 29 September 2009.

[112] The situation of the appellant’s wife and child must also be considered. It is accepted the child’s best interests to remain in New Zealand regardless of whether the appellant is deported or not. The child’s interests would indisputably be better served if the appellant did remain in New Zealand.

[10] The Tribunal concluded:

[113] The Tribunal considers, in the round, that this appellant’s deportation is proportional and necessary in the circumstances. Thus, it is reasonable and there would be no breach of family unity rights, whether of the appellant or his family, if he were deported.

[114] When the Tribunal balances the appellant’s serious offending, the nature of that offence and the victim impact, against the hardship to him and his family that separation would bring about, we find that it would not be unjust or unduly harsh for the appellant to be deported. The compassionate interests of the appellant, and those of his family, including his child, are outweighed by the circumstances, details and consequences, of his offending.

[11] Previously in the decision, the Tribunal had set out the evidence relating to Mr O’Brien and his family. To summarise this, the hearing proceeded on the basis that if deportation went ahead, Mrs O’Brien and the couple’s daughter, who are New Zealand citizens, would remain here. Mrs O’Brien was concerned about the living conditions in Tuvalu, and on a previous visit the child had become unwell.

[12] The prospects for Mr O’Brien in Tuvalu were relatively bleak. It seemed clear his offending would mean he would not be considered for government jobs, and it was highly unlikely that he could find work in his specialist area of welding. He could live with his father and family, but they were essentially subsistence living. Mr O’Brien would initially need to do likewise. It may be, the Tribunal considered, that he might ultimately re-train and thereafter do better.

[13] Mrs O’Brien and her daughter had support available, through Mrs O’Brien’s family, in New Zealand. Mrs O’Brien was able to work and so, ostensibly from the outside, separation would not carry consequences beyond those inherent in the forced separation of father from mother and daughter.

[14] However, the evidence went beyond this. Mr O’Brien filed two reports from a registered psychologist. Although covering many facets of the case, the aspects most relevant to these proceedings are the psychologist’s analysis of the impact of deportation on the couple’s daughter. It is relevant to note that the analysis also reflected consistent input from a psychotherapist who has been assisting Mrs O’Brien.

[15] For the purposes of these proceedings it is, I consider, unnecessary and therefore inappropriate to set out detail. It suffices to say that the living and care arrangements that will necessarily exist if Mr O’Brien is separated on a long-term or permanent basis from his wife and daughter cause both experts to have concerns about the child’s well-being. These concerns are specific and extend beyond the expected impacts of such separation, and relate to the child’s emotional and physical well-being, and longer term development.

Grounds for review

[16] On behalf of Mr O’Brien, Mr Smith advanced four grounds of review:

(a) errors in the manner in which the best interests of the child were assessed;

(b) a failure to have “open and transparent” regard to mandatory

considerations;

(c) a failure to “contextualise the applicant’s offending and risk of

re-offending”;

(d) the cumulative effect of these and other errors which in totality require the decision to be taken again.

Submissions

[17] The first two grounds of review overlap. The underlying submission is that the assessment paragraphs of the Tribunal’s decision (cited above at [9]–[10]) do not actually engage with the issues that arise. Rather, they present conclusions which are not linked back to the descriptive material set out earlier in the judgment. The reviewable error is said to be a lack of reasons, or alternatively a failure to have regard to these considerations. The proposition is that whilst they are referred to, they are not actually analysed.

[18] The general point is made most strongly in the context of considering the daughter’s best interests. It is common ground that this is a mandatory relevant consideration. Section 105(2) itself refers to the appellant’s family as a factor to be considered. More specifically, art 3(1) of the United Nations Convention on the

Rights of the Child is applicable. The following passage from Ye states the law:5

It is appropriate, in the light of New Zealand’s obligations under art 3(1), to interpret the relevant provisions of the Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision-making processes. The words “a primary consideration” in art 3(1) do not denote how this consideration ranks against any other relevant consideration such as the public interest. The child’s interests are always important; but what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test.

[19] Mr Smith’s primary submission is that whilst the Tribunal earlier in the judgment cites relevant passages about the child’s situation from the psychologist’s report, it does not thereafter analyse or consider the interests of M, or explain why her situation does not overcome concerns about the seriousness of Mr O’Brien’s

_offending.

5 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104, at [25], per Tipping J.

[20] Mr Smith sought to support this submission by reference to recent decisions of the United Kingdom Supreme Court.6 He took from them either a principle that a decision such as the present must begin with an analysis of the child’s interest, or that at least there should be a stand-alone section considering the interests of the child. It is only in this way that one can be satisfied the child’s interest has been meaningfully considered.

[21] It is submitted that the particular case illustrates the danger. There is no separate analysis by the Tribunal of the daughter’s situation and what the consequences of deportation will be. Nor is it explained why these significant factors have not been sufficient to succeed. The implication therefore to be taken is that this factor cannot have been properly understood or weighed. Alternatively, if it has been, then Mr O’Brien is entitled to a better articulation of the reasoning.

[22] Of lesser import but still submitted to be significant, are similar criticisms of the treatment of the citizenship of Mrs O’Brien and the daughter, the interests of Mr O’Brien’s Tuvalu family in not being deprived of the financial support now provided by Mr O’Brien, the applicant’s own medical needs (high cholesterol), the difficulty of obtaining in Tuvalu the assistance he needs, and Mr O’Briens rights to an adequate and improving standard of living as guaranteed by art 11(1) of the International Covenant on Economic, Social and Cultural Rights.

[23] The challenge based on cumulative errors was advanced under the so-called innominate ground of review. If none of the above errors is sufficient in itself, then taken with other factual mistakes, they create a situation where a Court properly

_{should require the decision maker to take the decision again.}

6. ZH Tanzania v Secretary of State for the Home Department [2011] UKSC 4, [2011] 1 WLR 148; BH(AP) v Lord Advocate [2012] UKSC 24, [2012] 3 WLR 151; R (on the application of HH) v Westminster City Magistrates’ Court [2012] UKSC 25, [2012] WLR 90.

[24] Several mistakes of fact, of varying significance it must be said, are identified. In no particular order, they are:

(a) a claim that the Tribunal erred in thinking that no money had been sent to Tuvalu since Mr O’Brien was jailed (the significance being that it cannot be said the Tuvalu based family are coping on their own);

(b) an error thinking that Mr O’Brien had no New Zealand based family, thereby causing the Tribunal to undervalue Mr O’Brien’s links to New Zealand. He has a supportive uncle;

(c) an unfair inference that the couple’s future together was unlikely to be long and enduring; and

(d) an unfair inference or finding that Mr O’Brien posed a threat to his daughter.

[25] In terms of whether a court could or should on judicial review proceedings engage at this level of detail, Mr Smith submitted that a “hard look” was mandated. A consequence of acceptance by me that this increased level of scrutiny was appropriate would be that the Court is able to go into the record and assess the validity of conclusions reached and inferences drawn.

[26] Finally, there was a challenge to the Tribunal’s assessment of the risk Mr O’Brien posed to the public, and to its reliance in this regard on the Parole Board assessments. It was submitted the Tribunal should have at least acknowledged it had further psychological assessments than had been available to the Parole Board. A significance of this challenge is that it is more directly relevant to the Tribunal’s decision on the public interest limb.

[27] In response, Ms Griffin emphasised that New Zealand has its own statutory scheme. The law was settled, and there was no warrant to import United Kingdom authority which arose in a different context. In the United Kingdom the Court was

required to undertake a proportionality assessment, which is not the position here. The cases had made plain the interests of the child were an important but not predominant factor. In addition to the Tipping J passage in Ye, reference could be also made to Huang v Minister of Immigration where the Court of Appeal observed:7

The Court should ensure that the best interests of an affected child were genuinely taken into account as a primary consideration but beyond that, how conflicting considerations are weighed is for the decision-maker and not the Court unless unreasonable considerations can be successfully invoked.

Discussion – the unjust and unduly harsh limb of s 105(1) of the Immigration

Act 1987

[28] The replies ably advanced by Ms Griffin to the other matters raised by the applicant can be considered as necessary at the relevant time. For now it is appropriate to immediately focus on this passage from Huang, as that is where the primary issue lies. Can the Court be satisfied that the interests of Mr O’Brien’s family (s 105(2)(g)), and in particular those of his daughter as reinforced by art 3(1) of UNCROC, have been adequately identified and considered?

[29] The relevant paragraph from what might be termed the reasons part of the

Tribunal’s decision was earlier cited, but bears repetition:

[112] The situation of the appellant’s wife and child must also be considered. It is accepted the child’s best interests to remain in New Zealand regardless of whether the appellant is deported or not. The child’s interests would indisputably be better served if the appellant did remain in New Zealand.

[30] In my view on its face this is insufficient. Focussing only on the situation of the daughter, the Tribunal identifies it is in her best interests to remain in New Zealand,8 and that she would indisputably be better off if Mr O’Brien were also here. What is not identified by the Tribunal is why that is, or conversely what the consequences will be if that situation does not occur. In the present case the

_{implications for the child go beyond those inevitably involved in any forced}

7 _{Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at [67].}

8. This conclusion removes any force from the respondent’s proposition that Mr O’Brien’s family was imposing a situation of no choice upon the Tribunal by declining to consider Tuvalu as an option.

separation. The evidence of the psychologist, if that is how the Tribunal read it and accepted it, is that the likely living arrangements will pose risks and significantly impair her development. These risks either arise from, or at least are significantly exacerbated by, Mr O’Brien’s absence. The psychologist described him as acting as a buffer between his daughter and the risks.

[31] In a particular case the proper interests of the state may require deportation notwithstanding such concerning consequences. That is an assessment for the Tribunal to make but it must be done in full awareness and after due consideration of these countervailing features.

[32] The case law makes it plain that the best interests of the child are a primary consideration, but are neither paramount nor the primary consideration. But they are to be given important and genuine assessment. I consider the first step in doing that is to carefully analyse and identify what those interests are, and what if any might be

the consequences of their disappointment.9

[33] Ms Griffin submitted that the paragraph from the decision cited above cannot be read in isolation. The discussions undertaken by the Tribunal earlier in the judgment must be factored in. As a general principle that is of course correct, but one would, therefore, expect the earlier portions of the judgment to contain the necessary assessment that the cited paragraph lacks. That has not happened.

[34] In relation to M, whilst the Tribunal first cites the relevant paragraphs from the psychologist’s report, there is no commentary or analysis by the Tribunal at that time. Next, it is noted that Mrs O’Brien and M will not relocate to Tuvalu, but this is raised in the context of assessing the impact of separation on Mr O’Brien. Likewise, although another section is headed “the interests of the appellant’s family”, the focus within that appears to again be on Mr O’Brien. It is, however, noted it will likely mean the end of the marriage, and that his relationship with his daughter will be a

_{long distance one.}

9. In Ye at [42] the Court articulated some of the questions that arise when considering the interests of the child. If separation was likely, these included who would be caring for the child, in what circumstances, and what difficulties might be encountered.

[35] I accept Mr Smith’s submission that this treatment of the family’s interests, and particularly those of the daughter, does not constitute a genuine consideration of their situation, as that term is used in Huang. For this reason alone, the matter should be referred back for reconsideration. Such reconsideration will involve the Tribunal in analysing more carefully the impact of separation on Mrs O’Brien and her daughter. This analysis will necessarily occur within the context that the Tribunal accepted on the evidence that the decision of Mrs O’Brien to keep her daughter in New Zealand was a reasonable one that was in the child’s best

interests.10

[36] Since the matter is to be referred back, I comment only briefly on other aspects. I saw no issue with the way in which the Tribunal assessed Mr O’Brien’s offending and future risk. It relied on reasonable sources, and in placing weight on the Parole Board view, it was calling in aid a body with particular expertise in risk assessment. I accept some consideration should be given to the more recent psychological assessments, but the omission to have overtly done so in the existing decision did not unduly trouble me.

[37] The inferences to be drawn from the evidence about the impact of deportation on Mr O’Brien’s Tuvalu based family are a matter for the Tribunal11 but I record I was left slightly uncertain as to the evidential basis for the Tribunal’s conclusions.

_{Whether the other matters raised as errors of fact are such is certainly open for}

10. In light of this conclusion it is unnecessary to discuss in detail the United Kingdom authorities to which Mr Smith refers. I do not consider the “children first” rule he proposes has been adopted in the United Kingdom – see Lord Hope in BH at [51], Lady Hale and Lord Kerr concurring. It cannot in any event stand against the clear indications to the contrary in Ye, Huang and

Puli’uvea v Removal Review Authority [1996] 3 NZLR 538 (CA). As for the proposition that this Court should mandate structural recognition by insisting, for example, that the child’s interests are addressed in a separate section, that is to go too far. The key thing is for the decision maker to identify the relevant factors, and what their content is in a particular case. Then to weigh that content as part of the balancing exercise. How the decision is written is for the Tribunal.

11 It was in this context that Mr Smith contended for the “hard look” approach to review. The

submission was based on the decision of Wild J in Wolf v Minister of Immigration [2004] NZAR 414 (HC) at [65]–[66]. It is not necessary to determine this aspect, although I found the respondent’s case for “orthodox review”, based on Puli’uvea, Huang and Singh v Minister of Immigration [2011] NZCA 532 more convincing. It is also an available inference from Ye that the Court does not consider the answer to these cases will normally be found in debates about the intensity of review.

debate, but the reality is that Mr O’Brien can seek to correct them when the matter is heard again.

Discussion – the significance of a negative finding for Mr O’Brien on the public interest limb of s 105(1) of the Immigration Act 1987

[38] It will be recalled that s 105 contains two tests an appellant must satisfy:

(a) first, that departure would be unjust or unduly harsh, having regard to the s 105(2) factors; and

(b) second, that allowing the appellant to remain in New Zealand would not be contrary to the public interest.

[39] The Tribunal concluded Mr O’Brien failed both limbs. That means it formed the view that allowing Mr O’Brien to remain in New Zealand would be contrary to the public interest. Unless a clearer elucidation and consideration of the humanitarian factors in relation to Mr O’Brien’s family would also affect this aspect of the decision, there would be no point in referring the matter back.

[40] There appears to be no determinative authority on what humanitarian factors are relevant to the public interest assessment under s 105(1). However, s 47(3) of the Immigration Act 1987, which concerned appeals against a requirement to leave New Zealand, contained a similar test. There the relevant wording was:

that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.

[41] In Zanzoul v Removal Review Authority,12 the Authority had determined that Mr Zanzoul had discharged the high onus under the first limb, but that he failed the second. Since it was the second limb that was determinative of Mr Zanzoul’s fate,

_{what matters were relevant to the public interest test was squarely in issue.}

12. Zanzoul v Removal Review Authority HC Wellington CIV 2007-485-1333, 9 June 2009, Dobson J.

[42] Dobson J noted that the second limb is a protective measure designed to constrain the first. In Zanzoul the Chief Executive of the Department of Labour advanced the proposition that the Authority had erred in considering humanitarian factors at all under the second limb. The Department had argued that humanitarian factors were inherently private (as in personal and particular to the individual) and, therefore, not relevant to a public interest assessment.

[43] With respect, I agree with Dobson J and with the precedents on which he relied, that this proposition was not correct. It is too narrow to say that recognition of “private” humanitarian concerns is not part of the public interest. The focus under the second limb is different in that one is looking more sharply at the community’s interest rather than the impacts of deportation on an individual. But that is not to say there still should not be a balancing of the interests.

[44] Those discussions occurred in the context of s 47(3). Ms Griffin noted that s 47(3) was different in its wording to s 105. In s 47(3) the test was broadened by adding the phrase “in all the circumstances”, a phrase lacking in s 105. However, I note that the newest iteration of the s 105 appeal power, s 207 of the Immigration Act 2009, contains the expanded test. The absence of “in all the circumstances” is not a matter that merits emphasis.

[45] There are High Court decisions that have considered the child’s and/or family’s interests under the public interest limb – Helu v Immigration Protection Tribunal,13 Oto v Minister of Immigration14 and Ali v Chief Executive of the Department of Labour15 – and the Tribunal itself appears to have done so in Helu

_{and in Nofoaiga v Minister of Immigration.}16

13 Helu v Minister of Immigration [2012] NZHC 1270, Toogood J. Leave to appeal to Court of

_{Appeal granted : Helu v Minister of Immigration [2012] NZHC 2128, Asher J.}

14. Oto v Minister of Immigration HC Wellington, CIV 2008-485-2183, 13 November 2009, Gendall J.

15 Ali v Chief Executive of the Department of Labour HC Wellington CIV 2009-485-1596,

_{1 February 2010, Miller J.}

16 Nofoaiga v Minister of Immigration DRT Decision 11/2009, 6 April 2009.

[46] In these circumstances I consider it cannot be said that a proper evaluation of the interests of Mr O’Brien’s family, and in particular the child’s best interests, might not also impact on the assessment reached under the public interest limb of this section. Accordingly, it remains appropriate and not moot to direct the Tribunal to re-take its decision.

Conclusion

[47] The applicant must succeed in his judicial review. The decision of the Tribunal declining to cancel the applicant’s deportation order is quashed and the matter is remitted to the Tribunal for reconsideration. In undertaking that reassessment, the Tribunal must better consider what is involved in its conclusions that the best interests of the child would be indisputably served by Mr O’Brien not being deported. If, as appears to this Court, there may be specific considerations and difficulties arising for the child if Mr O’Brien is deported, these should be identified and then weighed meaningfully in the balance.

[48] It may then be necessary for the Tribunal to reconsider its public interest assessment, depending upon what conclusions have been reached in relation to the

_{first limb.}

Simon France J

Solicitors:

M S Smith, Thorndon Chambers, Wellington, email: [e-mail]

N R Woods, Rowlands Woods Legal, Wellington, email: [e-mail]

C A Griffin, Crown Law, Wellington, email: [e-mail]