Tuitupou v Minister of Immigration [2016] NZHC 2002 (26 August 2016)

Last Updated: 2 November 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-424 [2016] NZHC 2002

BETWEEN	VILIAMI MOTI TUITUPOU Appellant
AND	THE MINISTER OF IMMIGRATION Respondent

Hearing:	27 April 2016
Appearances:	C Curtis & T G Zohs for Appellant D J Dufty & S A Wilson for Respondent
Judgment:	26 August 2016

_{JUDGMENT OF PAUL DAVISON J}

This judgment was delivered by me on 26 August 2016 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Marshall Bird & Curtis, Auckland

Meredith Connell, Auckland

TUITUPOU v THE MINISTER OF IMMIGRATION [2016] NZHC 2002 [26 August 2016]

Introduction

[1] Mr Tuitupou has been unlawfully in New Zealand since his work visa expired on 15 August 2013. In March 2012, he applied for a residence visa under the family (partnership) category, which was declined on character grounds on 14 August 2013. He appealed on humanitarian grounds to the Tribunal against liability for deportation on 27 September 2013.

[2] The Tribunal declined the appeal, finding there were no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be deported from New Zealand. It is this decision which Mr Tuitupou appeals.

[3] On 10 December 2015, Edwards J granted leave for Mr Tuitupou to appeal against the Tribunal’s decision.¹ The question of law involved in the appeal was put in the following terms:

Did the Tribunal err in law by considering the appellant’s criminal offending and the non-disclosure of that criminal offending and the effects of deportation as part of its assessment of “exceptional circumstances of a humanitarian nature” in s 207(1)(a) of the Act?

Background

[4] Mr Tuitupou was born in Tonga. At age 10, he moved with his family to American Samoa, then to Hawaii, and then to the United States where he lived for 24 years. There, he married and had two children (who continue to live there).

[5] Whilst residing in the United States, between 1986 and 1999, Mr Tuitupou was arrested 11 times and received seven convictions in the nature of traffic, drug, domestic violence and sexual offending.² In 2001, he was deported back to Tonga.

[6] In December 2002 to January 2003, Mr Tuitupou visited New Zealand on a limited purpose visa for his niece’s wedding. He came to New Zealand again in

¹ _{Tuitupou v New Zealand Immigration and Protection Tribunal [2015] NZHC 3158.}

² I accept the appellant’s submission that the offences were probably not of a particularly serious kind given the relatively light sentences imposed and having regard to the maximum penalties prescribed for the offences.

March 2005, and on this occasion, he remained in New Zealand after his visa had expired.

[7] In April 2005, Mr Tuitupou married a Tongan woman who is now a New Zealand citizen. They have three children together, all under the age of eight, who are also New Zealand citizens.

[8] Mr Tuitupou was granted a two-year work visa on 15 August 2011, and was employed as a builder and carpenter.

[9] In March 2012, he applied for a residence permit under the family

(partnership) category.

[10] In all correspondence with Immigration New Zealand (INZ), Mr Tuitupou failed to disclose his overseas convictions and that he had been deported from the United States.

[11] As part of its assessment of his residence visa application, INZ received advice from the FBI of Mr Tuitupou’s previous convictions and subsequent deportation from the United States.

[12] In an exchange of correspondence with INZ about this information, Mr Tuitupou explained that he had not disclosed his overseas convictions because he believed they had been expunged. In his appeal to the Tribunal he provided a different explanation saying that he had refrained from making any disclosure about the convictions and deportation because he had “felt desperate” to leave Tonga.

[13] Mr Tuitupou made a request to the Minister for the grant of a visa as a special case pursuant to s 61 of the Immigration Act 2009 (the Act). This was declined on 9

September 2013.

[14] He then filed an appeal to the Tribunal against his liability for deportation on humanitarian grounds. This was made pursuant to s 207 of the Act.

[15] Section 207 requires the Tribunal to be satisfied that:

(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

[16] Mr Tuitupou said his exceptional circumstances of a humanitarian nature were that:

(a) he no longer has family or connections in Tonga; (b) he would struggle to find employment there; and

(c) separation from his wife and children would have a damaging effect on them.

The Tribunal’s decision

[17] After setting out the background of this case, the Tribunal set out the approach to s 207, noting that the first limb requires (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the appellant to be removed from New Zealand.

[18] Under a heading entitled, “Whether there are Exceptional Circumstances of a

Humanitarian Nature”, the Tribunal considered the following factors:³

(a) Impact of deportation on children: Mr Tuitupou’s children are New Zealand citizens, and in this case, “the only alternative to the separation of the family unit” would be for the wife and children to accompany him back to Tonga:

[28] However, they are of an age where they could adapt to living in Tonga where there are adequate educational

³ Tuitupou, Villiami Moti [2015] NZIPT 501601.

facilities, if their parents make the decision to relocate them to

that country at some point...

[29] It has not been said that the appellant’s children suffer from any health issues or that they would have inadequate health services available to them in Tonga.

(b) Impact of deportation on wife: Mr Tuitupou’s wife was born in Tonga and arrived in New Zealand aged 20, in 2005, before she married Mr Tuitupou in 2007. The Tribunal said:

[31] Because she spent her youth in Tonga, she will be familiar with the educational facilities, employment prospects and health services available in that country.

The Tribunal also noted Mr Tuitupou’s wife has a brother who lives in Tonga. Although his personal circumstances were not known to the Tribunal (other than that he is on remittance for survival), “he is a member of the wife’s immediate family, in the event that she chooses to return to Tonga”.

In the event she chooses to stay in New Zealand, said the Tribunal, Mr Tuitupou’s wife has a sister who lives here so she would not be “without support”.

(c) The appellant’s personal circumstances: the appellant is a carpenter, described as having “useful skills” which would improve his prospects of gaining employment in Tonga. He also has support from the Church (in which he has a senior status).

(d) Character issues: the Tribunal referred to his overseas convictions, saying:

[41] The appellant claims that he did not disclose his criminal convictions in his various visa applications for New Zealand, because he had assumed that this record had been expunged. The record has now been updated and shows that the appellant’s convictions were not expunged. He was informed by Immigration New Zealand that, even if that had been the case, it was clear on the application forms that he was still required to declare these convictions, and to declare the fact of his deportation from the United States. He has also stated that

he was desperate to leave Tonga and wanted to put the past behind him.

[42] While his criminal convictions in the United States are now well in the past, the appellant demonstrated a willingness to mislead Immigration New Zealand in his application for residence, as recently as 2012, by failing to declare these.

[43] ... The integrity of the application process turns on the scrupulously honest and careful completion of forms. The Tribunal considers that any manner of immigration fraud is serious and something that is to be weighed against an appellant. The integrity of the immigration system is a matter of some significance to both the New Zealand government and the public.

[19] The Tribunal then concluded that the first limb of the s 207 was not met:

[48] Considered cumulatively, the Tribunal finds there are no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for Mr Tuitupou to be deported from New Zealand.

[49] As he has been unsuccessful on the first limb of the statutory test, it is unnecessary for the Tribunal to consider the public interest. If it did, his convictions would be an adverse factor which the Tribunal would have to weigh along with his non-disclosure of these various visa applications.

[20] Edwards J in her decision to grant leave, made the following observations relevant to this appeal and with which I agree:

(a) the Tribunal disposed of the appeal under the first limb of s 207 so there was no need to go on and consider the second limb (s

207(1)(b));

(b) the Tribunal’s analysis and determination was only in respect of the

first two ingredients of s207(1)(a), and not the third ingredient.

Submissions

[21] The appellant submits the Tribunal was wrong to refer to Mr Tuitupou’s “character issues” (criminal history and non-disclosure of it, as well as subsequent deportation) when considering whether there are exceptional circumstances of a humanitarian nature. This should have been considered in the context of the third

ingredient, namely, whether it would be unjust or unduly harsh for him to be removed from New Zealand.

[22] Furthermore, the Tribunal focused on the effects of deportation as establishing the first and second ingredients of s 207(1)(a), when again, they were only relevant to the third ingredient.

[23] Lastly, the Tribunal focused too heavily on a forecast of what life might be like for the appellant and his family in Tonga if he were to be deported from New Zealand. Ms Curtis submits the Tribunal got ahead of itself by considering Mr Tuitupou’s “post deportation situation premised on him losing his appeal” when it ought to instead have been focusing on the existence of Mr Tuitupou’s qualifying circumstances as they are.

[24] The respondent submits that just because the “character issues” identified by

the Tribunal would undoubtedly have been relevant to the third ingredient of s

207(1)(a), it does not mean that they are irrelevant to the first and second ingredients. The factors relevant to each different stage of the s 207 enquiry may overlap, even though they are to be assessed through a different lens. This submission appears to be an application and logical extension of what the Supreme Court said in Helu v Immigration and Protection Tribunal about the overlap between the third ingredient of s 207(1)(a) (“unjust or unduly harsh”) and s 207(1)(b)

(“public interest”).⁴

[25] As per the effects of deportation, the respondent submits the Tribunal was entitled to consider the “counterfactual” (i.e. what an appellant’s circumstances might look like if he or she were to be deported from New Zealand) when assessing whether the appellant’s circumstances are indeed “exceptional”.

[26] The respondent submits that even if there was an error, it had no material bearing on the decision reached by the Tribunal in any event.

⁴ Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298.

Can an appellant’s non-disclosure of relevant information to INZ be taken into account in the first and second ingredients of s 207(1)(a)?

Scheme of s 207

[27] Section 207 is entitled “Grounds for determining humanitarian appeal”. It

relevantly provides:

(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—

(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

[28] The predecessor of s 207(1) is s 47(3) of the 1987 Act, which is expressed in nearly identical terms. The differences between the two sections have been described as immaterial or “of no significance”.⁵

[29] The majority of the Supreme Court in Ye v Minister of Immigration said s

47(3) was drafted on the basis of two sequential considerations:⁶

The first step is to determine whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person concerned to be removed from New Zealand. If that is not shown, the inquiry ends there and removal takes place. If it is shown that it would, on the statutory basis, be unjust or unduly harsh to remove the person from New Zealand, the decision-maker must move to the second inquiry. This concerns whether, despite the injustice or undue harshness, it would in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand. A person seeking to avoid removal must demonstrate not only qualifying injustice or undue harshness but also that it would not be contrary to the public interest for them to be allowed to remain in New Zealand.

[30] The Court said that the first limb of s 207 involves three ingredients:⁷

_{(a) “exceptional circumstances”}

⁵ _{Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [8].}

⁶ Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [30].

(those circumstances which are outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule);

(b) “of a humanitarian nature”

(it is unlikely to be difficult to decide whether the circumstances of a particular case fulfil that description);

(c) “that would make it unjust or unduly harsh for the person to be removed from New Zealand”

(the qualification of the word “harsh” by the word “unduly”, recognises that there may be some degree of harshness in removing an overstayer from New Zealand. Undue in this context means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system).

[31] Elias CJ departed from the view that the first limb involves a tripartite standard, preferring the view that the enquiry involves a composite standard.

[32] When considering the link between the first two ingredients of s 207(1)(a) (exceptional circumstances of a humanitarian nature) and the third (unjust or unduly harsh), Elias CJ said:⁸

The circumstances which are relevant must be humanitarian circumstances, but the standard they are to reach (“exceptional”) is controlled by the defining clause: “that would make it unjust or unduly harsh for the person to be removed from New Zealand”.

[33] On this point, the majority wrote:⁹

Whether the particular exceptional circumstances give rise to the necessary injustice or undue harshness is a matter for the assessment of the decision-

⁸ At [7].

maker. It will depend on how compelling or persuasive the exceptional circumstances are.

[34] In Helu, the Supreme Court confirmed the view that although Ye endorsed a sequenced approach, strict sequencing may not in fact be required.¹⁰ The Court said that the factors relevant to the “unjust or unduly harsh” enquiry and the “public interest” enquiry may overlap, though they will be viewed through a different lens.¹¹

Both tests must be met before the Tribunal may quash a deportation order.

The appellant’s overseas convictions

[35] I say from the outset that Mr Tuitupou is in my view, wrong to say that the Tribunal considered his overseas convictions as a factor against him when declining his humanitarian appeal. It was not his offending itself that was of significance to the Tribunal but the fact that he had not disclosed the convictions to INZ. Also relevant was his deportation from the United States, which he similarly failed to disclose.

[36] In submissions to the Tribunal, Mr Tuitupou’s counsel sought to isolate the context of Mr Tuitupou’s violent offending, noting that the sexual offending (sodomy) would not now constitute a crime in New Zealand.

[37] Quite apart from those submissions, the Tribunal in my view rightly acknowledged that his overseas convictions are historic and therefore were not necessarily detrimental to his appeal. It was the fact that he failed to disclose the convictions which reflected badly upon his character and credibility. It was also his

_{failure to disclose that he had been deported from another country (meaning he was}

¹⁰ Note the Supreme Court in Helu was dealing with s 105 of the Immigration Act 1987, which differs from s 207 in the 2009 Act in that the first and second ingredients of s 207 are not present in s 105: there is no requirement to identify exceptional circumstances of a humanitarian nature. Also, s 105(2) lists matters which the Tribunal must have regard to in deciding whether or not it would be unjust or unduly harsh to deport the appellant from New Zealand. Although these matters are not listed in s 207, they are not irrelevant. Note also – s 105 was dealing with deportation of criminal offending. The 2009 Act provides a more centralised regime for statutory appeals against deportation generally: all humanitarian appeals to the Tribunal are determined by reference to the same test under s 207 (which is the equivalent of s 47(3) in the

_{1987 Act).}

¹¹ At [170]. See also Rameshi v Minister of Immigration [2015] NZHC 2803.

prima facie not eligible for a visa or to be in New Zealand)¹² which would be properly regarded as an attempt to bypass the criteria and procedure set in place for obtaining a New Zealand visa notwithstanding his ineligibility.¹³ In doing so, Mr Tuitupou’s actions compromised the integrity of New Zealand’s immigration system. This was in effect the point the Tribunal made under the heading “character issues”.¹⁴

[38] Therefore, I put Ms Curtis’s submission as to the gravity of his offending while in the United States to one side. It was Mr Tuitupou’s failure to disclose his overseas convictions and subsequent deportation from the United States which the Tribunal considered in its assessment – not the fact of his overseas convictions.

Is the appellant’s non-disclosure of relevant information, a possibly relevant factor in the “exceptional circumstances of a humanitarian nature” stage of the enquiry as well as the “unjust or unduly harsh” stage of enquiry?

[39] Although the phrase “exceptional circumstances of a humanitarian kind” is said to encapsulate two separate ingredients, it is the presence of both ingredients which together determine the scope of the first enquiry under s 207(1)(a): are there exceptional circumstances of a humanitarian nature?

[40] If there are exceptional circumstances of a humanitarian nature, the second enquiry (or to use the language of Ye, the “third ingredient”) looks at whether it would be unjust or unduly harsh for the person to be removed from New Zealand. The second enquiry only proceeds if exceptional circumstances of a humanitarian nature have been found to exist, and is consequently assessed in light of the Tribunal’s conclusion on the first enquiry.

[41] There is no dispute that the issue of non-disclosure would have been relevant to the second enquiry if the Tribunal had got that far. In Guo, the Supreme Court considered the language of s 207(1) and specifically, the expression “unjust or

_{unduly harsh”. The Court said this:}¹⁵

¹² _{Immigration Act 2009, s 15(f).}

¹³ _{Section 17.}

¹⁴ _{Section 153.}

¹⁵ At [9].

Whether deportation would be “unjust or unduly harsh” is to be assessed in light of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of deportation.

[42] Mr Tuitupou’s failure to disclose his overseas convictions and subsequent deportation from the United States is the reason why he is liable for deportation. It is not a factor that is directly relevant to why he should not be deported from New Zealand. Consequently, in my view, it is not a factor that is relevant to the first enquiry.

[43] The purpose of the first enquiry is to identify the existence of exceptional circumstances of a humanitarian nature (if any) that point to why a deportee should not be deported from New Zealand. Here, the Tribunal is looking at two issues:

(a) any humanitarian circumstances that are exceptional to the appellant,

(these will inevitably involve matters that are favourable to the appellant’s case for remaining in New Zealand, notwithstanding his or her liability for deportation)

(b) and which exist at the time he or she is liable for deportation (or after).

[44] Obviously, the issue of non-disclosure is not a consideration that is favourable to Mr Tuitupou and, importantly, it did not arise at the time of or following his liability for deportation. Rather, it was the principal cause and reason for his liability for deportation.

[45] I agree with Ms Curtis’s submission that the non disclosure of his prior convictions and deportation from the United States is a factor relevant to the Tribunal’s assessment of whether deportation would be unjust or unduly harsh, and/or whether it would be contrary to the public interest to allow him to remain in New Zealand.

Are the effects of deportation, a relevant factor when considering “exceptional circumstances of a humanitarian nature”?

[46] Mr Tuitupou complains that the Tribunal addressed the question of whether there were exceptional circumstances of a humanitarian nature through the lens of the consequences should he be deported. For example, the Tribunal said that if Mr Tuitupou’s wife were to follow him to Tonga, she would be “familiar with the educational facilities, employment prospects and health services” there, as well as having her brother, who lives there, for familial support. Mr Tuitupou complains that no such arrangements had been contemplated by him or his family, and the Tribunal should not have treated these hypothetical possibilities as effectively matters of fact.

[47] In my view, the Tribunal’s approach cannot be criticised. The starting point of s 207 is that an appellant is liable for being deported from New Zealand, so logically, the effect of an appellant’s deportation is very much the basis of their humanitarian appeal and forms part of the circumstances that inter alia may constitute exceptional circumstances of a humanitarian nature.

[48] Moreover, Mr Tuitupou himself had referred to the fact that he no longer has family connections in Tonga and that he would struggle to find employment there as matters that comprised the exceptional circumstances that he was asking the Tribunal to consider.

[49] In taking this approach, the Tribunal was able to conclude that the circumstances said to be “exceptional” by Mr Tuitupou were in fact rather “unexceptional” in the sense they were no different from the normal run of circumstances commonly seen in deportation cases generally.

[50] The Tribunal also touched on the second stage of s 207(1)(b) although it had not gone that far. Insomuch as they are reasonable and foreseeable, the likely future of an appellant and his or her family so far as where they would be residing and the circumstances pertaining to such a situation are clearly relevant when assessing the harshness that could result from his or her deportation,

Conclusion

[51] I find that the Tribunal did err in its approach to s 207(1)(a) by considering Mr Tuitupou’s “character issues” prematurely. It should not have considered the issue of non-disclosure as being relevant to whether or not there are exceptional circumstances of a humanitarian nature. This issue would have been appropriately and properly relevant to the second enquiry (or third ingredient) of s 207(1)(a), being the “unjust or unduly harsh” enquiry.

[52] However, I nevertheless agree with the respondent’s submission that this error did not have a material bearing on the outcome of the Tribunal’s decision. The circumstances Mr Tuitupou has identified are not “exceptional” and so he does not cross the first hurdle of s 207(1). Accordingly, the Tribunal was not required to go any further in its assessment of Mr Tuitupou’s humanitarian appeal under s 207, and the matter ends there.

[53] Although Mr Tuitupou’s appeal has been partially successful, in that I have upheld his complaint that the Tribunal was wrong to include the issue of non- disclosure in the context of determining whether there are exceptional circumstances of a humanitarian nature, this finding does not affect the validity of the Tribunal’s decision to reject his appeal which still stands.

[54] The Tribunal’s decision is confirmed and the appeal is dismissed.

[55] Should any question of costs arise, counsel are to file and exchange memoranda as to costs within 14 days of delivery of this judgment.

Paul Davison J