EG (Fiji) v Minister of Immigration [2016] NZHC 2071 (5 September 2016)

Last Updated: 11 November 2016

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD(REN).

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000888 [2016] NZHC 2071

IN THE MATTER OF	An application for leave to appeal under s 245 of the Immigration Act 2009
BETWEEN	EG (FIJI) Applicant
AND	MINISTER OF IMMIGRATION Respondent

Hearing:	20 April 2016
Appearances:	Amelia Schaaf and Arunjeev Singh for the Applicant Olivia Klaassen for the Respondent
Judgment:	5 September 2016

_{JUDGMENT OF MOORE J}

This judgment was delivered by me on 5 September 2016 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

EG (FIJI) v MINISTER OF IMMIGRATION [2016] NZHC 2071 [5 September 2016]

Introduction

[1] The applicant appealed to the Immigration and Protection Tribunal (“the IPT”) against the issue of a deportation liability notice by the Minister of Immigration.

[2] The IPT balanced the circumstances which led the applicant being convicted of various sexual offences against the consequences to him if he was to be deported to his home land of Fiji.

[3] In dismissing the applicant’s appeal¹ the IPT determined that he had not made out the existence of exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be deported from New Zealand.

[4] The applicant now seeks leave to appeal that decision to this Court on three questions of law, which, he submits, by reason of their general or public importance or for any other reason ought to be determined by the High Court.

Background

[5] The applicant is a citizen of Fiji. He arrived in New Zealand in 2006 on a visitor’s visa as a 21 year old. He was with his mother and three siblings. His father had arrived a year earlier. The family settled in Auckland. On 8 November 2007 the applicant was granted a New Zealand residence permit.²

[6] In May of that year, the applicant began a relationship with his maternal biological aunt. She was approximately 10 years older and had three daughters to her husband who was in prison at the time. The applicant’s immediate family strongly disapproved of the relationship and feared that the family’s reputation within the local Fijian Muslim community would suffer.

[7] As a result, the applicant and his aunt relocated. They first lived in Hamilton before moving to settle in Wellington. There they had a daughter who was born in

¹ On 31 March 2015 in EG (Fiji) v Minister of Immigration [2015] NZIPT 600133.

2009. They continued to live as a couple until September 2011. At that time the applicant indicated he wished to return to Auckland to reconcile with his family. Initially his aunt agreed. And so he purchased a home in South Auckland depositing some $30,000 to $40,000 of his own funds towards the purchase price of $330,000 with the remainder financed through a mortgage with the ANZ Bank.

[8] In November 2011 the applicant’s aunt and children accused him of various forms of physical and sexual abuse. This led to him being charged with a total of 39 offences all of which he denied. The applicant elected trial by jury. He was tried in the Wellington District Court in August 2013. He was acquitted on 20 charges. The jury was unable to agree in respect of 11. These were dismissed after the Crown indicated it would not seek a re-trial. The eight charges on which he was found guilty included one charge of indecent assault, two charges of committing an indecent act on a young person, two charges of assault with a weapon and three charges of assault on a female. He was sentenced to 10 months’ home detention and

180 hours’ community work.³

[9] After he was first charged the applicant was remanded in custody for four months before being bailed in April 2012. A condition of his bail was that he reside at his parents’ home in Auckland. He continues to live at this address with his parents, his brother, his brother’s wife and their child. He is currently employed as a linesman with a power company. The applicant has not seen his daughter since the accusations against him were first made. His aunt has obtained a permanent protection order preventing him from having contact with her or their child.

[10] A consequence of the applicant’s convictions was that he immediately became liable for deportation.⁴ A notice to that effect was issued by the Minister of Immigration on 16 April 2014 and served on the applicant on 13 May 2014.

_{[11] The applicant appealed the issuing of the notice to the IPT.}

³ R v K DC Wellington CRI-2013-085-1470, 25 October 2013.

The IPT’s decision

[12] The IPT delivered its decision on 31 March 2015.⁵ It noted that the applicant’s appeal was brought on humanitarian grounds pursuant to s 207 of the Immigration Act 2009 (“the Act”), which 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.”

[13] The IPT examined the applicant’s personal circumstances in some detail. It noted he was 30 years old and living with his immediate family. If he remained in New Zealand he could continue living with them and contributing to their expenses. The IPT recognised the applicant had stable work and was well-regarded by his employer. He had not been asked to contribute to the upkeep of his daughter. The IPT also observed he had a freehold property in South Auckland. However, this was subject to a relationship property claim brought by his aunt. It would probably have to be sold regardless of whether or not he remained in New Zealand. It was also noted he owed a debt of just over $30,000 to the Legal Services Agency.

[14] The IPT had regard to the evidence of the applicant’s family members that he would find it impossible to find either accommodation or employment in Fiji if required to return there. The applicant’s family believed that the Fijian diaspora was such that his extended family and the wider community would soon discover the circumstances surrounding his deportation. As a consequence they claimed he would be ostracised.

[15] The IPT accepted the applicant’s ability to find employment in Fiji could be affected by the stigma of his relationship with his aunt and his subsequent convictions. It also accepted that the job market in Fiji might well be less buoyant

_{than in New Zealand. However, it noted that the applicant had shown himself to be a}

⁵ EG (Fiji) v Minister of Immigration, above n 1.

resourceful and hardworking man. He had managed to obtain and succeed in a variety of diverse roles after moving to New Zealand. He had done well in his current role which required a high degree of skill.

[16] The IPT was satisfied that if he were returned to Fiji, the applicant might initially be required to undertake relatively menial employment, but that his longer term employment prospects there, given his proven application and skills, were positive and would put him in good stead to re-establish his life. He would also be assisted by the funds he could take with him from the sale of his property in South Auckland.

[17] The IPT accepted the applicant and his immediate family were well settled in New Zealand and that he was involved in his local community both religiously and in sport. It also accepted his immediate family considered him a gentle and loving person who they would miss greatly if he was required to leave New Zealand.

[18] The IPT also considered the interests of the applicant’s daughter. It was persuaded the applicant genuinely loved her and desired an ongoing relationship with her. However, given the effect of the current protection and sole parenting orders it was plain the applicant’s aunt still harboured animosity towards him making it unlikely any father/daughter relationship could develop in the short term at least.

[19] The final matter considered by the IPT was a claim made by the applicant that if he was required to return to Fiji his life would be at risk. More particularly, the applicant’s father gave evidence the applicant’s paternal uncle would kill the applicant in reprisal for his conduct. The IPT dismissed this evidence. It commented this claim relied on inferences the applicant’s father had drawn from broad statements of disapproval attributed to the uncle. The IPT considered it noteworthy that the applicant had made no mention of this threat until the hearing despite having several opportunities to do so earlier.

[20] Taking all these matters into account, the IPT found there were exceptional circumstances of a humanitarian nature engaged in the applicant’s case. Deportation would result in him leaving behind all of his immediate family and he would, in all

likelihood, be unable to call on the support of his extended family in Fiji because of the nature of his past relationship with his aunt.

[21] The IPT then went on to consider whether these exceptional circumstances would make it unjust or unduly harsh to deport the applicant. The IPT specifically noted that it applied the test in Galanova v Minister of Immigration.⁶ This required it to weigh the gravity of the applicant’s offending, as well as any other adverse considerations, against the compassionate factors which favoured him remaining in New Zealand.

[22] The IPT referred extensively to the comments of the judge who sentenced the applicant. He stated that the three of the charges the applicant was convicted of were representative and that the offending in general covered a three and a half year period from 2008 to 2011. The Judge considered that there was “a very significant degree of embellishment and exaggeration by all four complainants” which he felt was reflected in the verdicts returned by the jury. However, it was clear the applicant was prepared to assault and threaten all three victims, including using a knife on two occasions and sexually assaulting two of them on multiple occasions by touching their breasts and bottoms over their clothing.

[23] The IPT balanced this conduct against the exceptional humanitarian circumstances at play. As previously noted, it focused on the fact that deportation would separate the appellant from his immediate family and make it very difficult for him to pursue a relationship with his daughter in the future. His ability to call on the support of his extended family would also be significantly compromised.

[24] Against these factors, the IPT noted that it had been the applicant’s choice, for the four years, to live in Wellington with his aunt and to separate himself from his immediate family. Over that period he had little or no contact with them. Furthermore, the IPT observed that his parents, in their early to mid-50s, were relatively young and despite their difficulties, would be able to cope without the applicant’s contribution to the household. The IPT also noted that the applicant’s

_{immediate family would still be able to visit him in Fiji and, through the facilities of}

⁶ Galanova v Minister of Immigration [2012] NZIPT 500426 at [47] to [50].

modern communication, would be able to maintain contact with him. As a 30-year old man who had spent the first 22 years of his life in Fiji, the IPT determined he was capable of re-establishing himself back in his country of birth.

[25] Considering all these factors the IPT considered that, while separation of the family would be painful for all concerned, this did not mean that the exceptional circumstances in the case outweighed the gravity of the applicant’s offending such that it would be unjust or unduly harsh for him to be deported.

The applicant’s case

Grounds for seeking leave

[26] The applicant seeks leave to appeal on the following questions of law:

(a) Did the IPT err in not considering the mitigating factors in the appellant’s offending when it decided the question of whether it would be “unjust or unduly harsh for the applicant to be deported from New Zealand”?

(b) Did the IPT err in not considering the nature of the appellant’s offending and where his offending fitted within the spectrum of such offending when the IPT considered whether it would be “unjust or unduly harsh for the applicant to be deported from New Zealand”?

(c) Did the IPT err in focusing on the gravity of the offending weighed against the exceptional humanitarian circumstances, and not considering other relevant factors and in this case, the societal attitudes towards the applicant if returned to his home country?

Submissions

[27] Ms Schaaf, for the applicant, submits these are all questions of law because, first, they involve the IPT failing to take into account relevant considerations and secondly, they raise questions about the application of the statutory test under s

207(1) of the Act and in particular, the consideration of whether it would be “unjust

or unduly harsh” to deport the applicant. She submits that the IPT was too rigid in its application of this test.

[28] Ms Schaaf points out that the Act changed the wording of the test for resisting deportation on humanitarian grounds previously contained in s 105 of the Immigration Act 1987 (“the 1987 Act”). The former section contained a list of factors the IPT was required to consider. Now those factors have been removed from the new provision Ms Schaaf submits that the IPT does not seem to have settled on what factors it needs to consider. Given it cited its own authority, she argues that the IPT has not only wrongly limited the range of factors it may take into account but has also applied certain factors inconsistently; placing weight on them in some cases but not in others.

[29] Developing this submission, Ms Schaaf says that in support of its decision, the IPT cited and applied its own decision in Galanova v The Minister of Immigration⁷ when considering whether deportation would be unjust or unduly harsh. In doing so the IPT unduly limited itself by reference to the Galanova factors. She submits there may be other relevant factors and the IPT’s apparent unwillingness to consider other matters consistent with s 105(2) of the 1987 Act amounts to an

error of law. She supports this submission by noting Galanova has been cited and applied by the IPT 76 times since it was delivered in 2012.

[30] Ms Schaaf also refers to Guo v Minister of Immigration⁸ where the Supreme Court examined the “no fault end” of the spectrum and whether someone who is totally innocent, such as the children of the proposed deportee, should be considered under the “unjust or unduly harsh” element. She submits that the IPT should have expressly stated that the applicant’s offending was at the lower end of the scale. The IPT over-emphasised the aggravating factors listed by the sentencing Judge which, she submits, coloured the IPT’s broader consideration of what amounted to “undue

_harsh”.

⁷ _{Galanova v The Minister of Immigration above, n 6 at [47]-[49].}

⁸ Guo v Minister of Immigration [2015] NZSC 132.

[31] Owing to these uncertainties, Ms Schaaf submits that an authoritative decision of this Court would assist in clarifying the factors the IPT is required to consider in determining whether deportation would be “unjust or unduly harsh” in terms of s 207 of the Act.

Leave principles

[32] Leave to appeal a decision of the Tribunal is governed by s 245 of the Act. This imposes three restrictions:

(a) an appeal may only be brought with leave of the High Court, or of the

Court of Appeal if the High Court refuses leave; (b) the appeal can only be on a question of law;

(c) the Court must have regard to whether the question of law is one that, by reason of its general or public importance, or for any other reason, the question ought to be determined by the High Court.

[33] In LMN v Immigration and Protection Tribunal, Duffy J explained the approach to s 245:⁹

“Section 245 of the Immigration Act 2009 provides a right of appeal with leave to this Court against a decision of the Tribunal. The grounds for granting leave are narrow. In short, the applicant must show that his application raises a question in law of general or public importance, or which for any other reason should be submitted to this Court for its decision. Thus factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination, therefore, is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing “any other reason” for his appeal to be submitted to this Court for determination.”

⁹ LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [2].

[34] Gendall J added the following comments in Ogosi v Minister of

Immigration:¹⁰

“A semantic analysis, or an intricate word by word dissection, of a Tribunal’s decision, in cases as this, does not help when determining appeals which must be based only on points of law. The decision has to be viewed in its entirety, bearing in mind the established expertise of a Tribunal empowered especially to review a Minister’s deportation order. As Giles J in Butler v Removal Review Authority [1998] NZAR 409 noted, a decision of the Authority must be considered as a whole. The Authority has a duty to give reasons but not every piece of evidence must be traversed in detail, provided the party affected can understand the basis for the decision. In that decision, it was implicit that documents in evidence referred to by the Authority had been carefully reviewed and assessed. The Authority’s expertise must be recognised so that if a decision can be supported by evidence, it is not for the Court to substitute its own.”

[35] As Ms Klaasen for the Minister of Immigration identifies, in order to obtain leave, the applicant is required to satisfy the Court of two matters:

(a) first, that the IPT made an error that amounts to a seriously arguable question of law; and

(b) secondly, that the question of law is of general or public importance or for some other reason ought to be determined by the High Court.

[36] This two-stage approach has been referred to in the decisions of a number of appellate Courts in New Zealand, and I consider it to be uncontroversial.¹¹ The remainder of my judgment is devoted to addressing the two relevant issues under s 245 of the Act.

Has the IPT made an error that amounts to a seriously arguable question of law?

[37] I will consider this first issue in respect of each of the questions of law proposed by the appellant.

¹⁰ _{Ogosi v Minister of Immigration HC Wellington CIV-2006-485-673, 27 April 2007 at [23].}

¹¹ See Guo v Minister of Immigration, above n 8; Teitiota v Chief Executive of Ministry of Business, Innovation and Employment [2015] NZSC 107; JO v Ministry of Business, Innovation and Employment [2015] NZCA 482; Minister of Immigration v Jooste [2014] NZCA 23.

Did the IPT err in not considering the mitigating factors in the appellant’s offending when it decided the question of whether it would be “unjust or unduly harsh for the applicant to be deported from New Zealand”?

[38] Ms Schaaf submits there has been a lack of consistency in the IPT’s decisions on the question of whether it has considered the mitigating factors of an applicant’s offending. She says that in some cases it has been taken into account; in others, as with the applicant, it has not. Ms Schaaf maintains that the IPT overlooked this “very important factor”. Specifically, she says that the IPT failed to consider the sentencing Judge’s statement that there was a significant degree of immaturity and naivety in the applicant’s decision to become embroiled a relationship with his aunt.

[39] This submission can be dealt with quite shortly. The IPT’s decision makes it clear it did take into account the various mitigating factors involved in the applicant’s offending. The IPT listed the various factors identified by the Judge, observing:¹²

“His Honour then gave the appellant a discount of approximately three months because he had not previously offended, had good community and family support and good employment, all of which reduced the likelihood of his re-offending. His Honour also noted that the appellant had spent between three and four months in custody...”

[40] It is plain from this paragraph that the IPT was aware of these factors; indeed given the detail in which it is repeated, the nature of the offending and where it sits in the spectrum of seriousness was obviously appreciated by the IPT. Clearly this factor formed part of the IPT’s consideration as to whether it would be “unjust or unduly harsh” to deport the appellant.

[41] Likewise, it seems clear that the IPT was aware of the applicant’s immaturity and naivety at the time he entered into the relationship with his aunt. While not specifically listed as a mitigating factor, reference was made to the applicant’s evidence where he said his aunt had “seduced” him. This, combined with the fact the IPT was familiar with the sentencing comments makes it plain in my view the

IPT took into account the applicant’s evidence his aunt had seduced him.¹³ This

_{combination easily satisfies me the IPT was well aware of how the applicant’s}

¹² _{At [96] of its decision.}

¹³ At [7] of its decision.

relationship with his aunt commenced and the influence naivety played in the applicant’s decision to become involved.

[42] I agree with Ms Klaassen when she submits the applicant’s true objection appears to be the weight the IPT placed on this factor. In this context, the comments of the Court in Tuitupou v The New Zealand Immigration and Protection Tribunal are worthy of repetition.¹⁴

“I do not consider it seriously arguable that the Tribunal erred in this respect either. The Tribunal listed the documentation provided to it, including school reports and associated letters and noted that it had considered all submissions and documents provided by the appellant. The fact that Mr Tuitupou no longer had family in Tonga was referred to in the decision, as was the fact that he had children who remain in the United States. The effect of separation on his New Zealand based children was also considered by the Tribunal, as was his role with the Church.

I consider any complaint under this head can only be directed to the weight the Tribunal placed on these various factors, which does not give rise to an error of law in this case.”

[43] The applicant may well consider his naivety should have been accorded greater weight than it was. However, considerations of weight do not give rise to a seriously arguable question of law.

Did the IPT err in not considering the nature of appellant’s offending and where his offending fitted within the spectrum of such offending when the IPT considered whether it would be “unjust or unduly harsh for the applicant to be deported from New Zealand”?

[44] Ms Schaaf submits the IPT was required to consider where the applicant’s offending sat on the spectrum of similar or comparable offending. As would a sentencing Court, the IPT submits she should have determined whether the index offending sat at a level comparable to the least serious, the most serious or somewhere in between. She observes such an analysis has been undertaken in other cases.

[45] In my view an examination of the IPT’s decision reveals this argument carries

_{little weight. At the outset of its assessment on the question of whether it would be}

¹⁴ Tuitupou v The New Zealand Immigration and Protection Tribunal [2015] NZHC 3158 at [67].

“unjust or unduly harsh” to deport the applicant, the IPT expressly observed that it “must weigh the gravity of the offending and any other adverse considerations, against the compassionate factors favouring the appellant remaining in New Zealand.”¹⁵ It then summarised the sentencing Judge’s assessment of the gravity of the offending¹⁶. Specifically, it noted that the charges covered a three and a half year period of offending and that the Judge had some difficulty in gaining a clear picture

of the nature of the applicant’s relationship with his aunt and her three daughters. The jury’s verdicts on the sum of the charges suggested the conduct was nowhere near as oppressive, controlling and predatory as contended by the Crown. The IPT also referred to the Judge’s finding there was a significant degree of embellishment and exaggeration by the victims.

[46] The IPT noted the Judge’s observation that 10 months’ home detention was the equivalent “of a much longer sentence of imprisonment”. The IPT then turned to consider where the balance between the offending and the exceptional humanitarian circumstances should be struck. Plainly implicit in that exercise was an evaluation of the seriousness of the applicant’s offending.

[47] To the extent that Ms Schaaf suggests the IPT was required to compare the applicant’s offending to that in other cases, this submission cannot succeed either. As Ms Klaassen observes, the Courts have held that there is nothing which requires the IPT to undertake such an evaluation. In Taafi v Minister of Immigration, Kós J stated:¹⁷

“In response, Mr Powell argued that it was not so much that the DRT distinguished this case from that of [another offender], but that the DRT rejected the approach of comparing offences as unsound because the circumstances of each case are unique. In support of that proposition, the Tribunal cited Ogasi v Minister of Immigration. I agree. While like cases should be treated alike where possible, each case must be determined on its merits. While I agree that the distinction the DRT has drawn between Mr Taafi’s offending and that of Mr Toomata is perhaps tenuous, that is not the test.”

[48] There is good reason underpinning this approach. Even if the offences committed by two applicants are comparable, that is simply one consideration in the

¹⁵ _{At [87].}

¹⁶ _{At [88]-[89].}

¹⁷ Taafi v Minister of Immigration HC Wellington CIV-2010-485-939, 28 September 2010 at [61].

balancing exercise. Their wider personal and humanitarian circumstances will almost certainly differ to such an extent that comparisons will seldom, if ever, be of real assistance.

[49] It follows I find that no seriously arguable question of law has been established under this head.

Did the IPT err in focusing on the gravity of the offending weighed against the exceptional humanitarian circumstances, and not considering other relevant factors and in this case, the societal attitudes towards the applicant if returned to his home country?

[50] Ms Schaaf submits that by applying the test in Galanova the IPT unduly limited the factors it was able to consider in determining whether or not it was “unjust or unduly harsh” to deport the applicant.

[51] She submits that rather than simply weighing the gravity of the offending and any other adverse factors against the compassionate factors the IPT should consider other relevant factors. Specifically in this case she submits the societal attitudes leading to social estrangement or worse should have been taken into account.

[52] This submission too must fail. The IPT’s decision makes it plain that the societal attitudes likely to adversely affect the applicant if he returned to Fiji was a factor on which weight was placed. This issue was referred to explicitly at [16], [22], [85], [86] and at several other places in the decision. An example is paragraph [56] where the IPT stated:

“A common thread among the testimony given by members of the appellant’s family was that he would find it impossible to find either accommodation or employment if he had to return to Fiji. The rumour-mill in that country would soon ensure that his personal circumstances and the reason for his deportation were widely known, and he would be ostracised by extended family there. No evidence was produced with respect to the current employment market in Fiji, but the Tribunal accepts that the market for employment may be less buoyant there than it is in New Zealand. It may be that the stigma attached to the appellant by reason of his relationship with his aunt will have some impact upon his ability to find accommodation and/or employment.”

[53] Plainly, the IPT considered this factor in determining whether exceptional humanitarian circumstances existed. It follows this consideration was engaged when the IPT considered whether these exceptional humanitarian circumstances outweighed the gravity of the offending such that it would be “unjust or unduly harsh” to deport the applicant.

[54] I am also satisfied, in a broader sense, the IPT made no error in applying the test in Galanova and focusing on the gravity of the offending weighed against the exceptional humanitarian circumstances. At the relevant time, Galanova represented the correct and repeatedly applied test in a case engaging s 207(1). As will be discussed in more detail later in this judgment, this approach now appears to have been supplanted by the comments of the Supreme Court in Guo, although there seems to be little practical difference between the two interpretations. Regardless, I consider that the IPT made no error in applying the test in the way that it did.

[55] I also note that Ms Schaaf has not been able to identify any other relevant factors that the IPT failed to consider in this case specifically.

[56] For these reasons, I consider this proposed ground of appeal does not amount to a seriously arguable question of law.

[57] In summary I am not satisfied the applicant has identified an error in the IPT’s decision which amounts to a seriously arguable question of law. As a consequence it is not necessary for me to go on to consider the second stage of the enquiry. However, even if I am wrong I am not satisfied that any of the questions is one that, by reason of its general or public importance, or for some other reason, ought to be submitted to the High Court. My reasons follow in the next section.

Is the question of law one that, by reason of its general or public importance, or for some other reason ought to be submitted to the High Court?

[58] It is claimed all three of the proposed questions raise the same question of general or public importance: how the “unjust or unduly harsh” test in s 207(1) should be applied and what factors the IPT is required to take into account or is able

to take into account. The applicant’s case is that the determination of this question is of critical importance in light of the enactment of s 207(1).

[59] In determining whether an issue is of general or public importance it is instructive to examine the history of the section. In doing so I adopt Ms Klaassen’s summary.

[60] Under the previous statutory regime different categories of affected persons appealed to different tribunals under various provisions of the Act.

(a) Under s 22 of the 1987 Act, a resident whose permit was revoked due to mistake, fraud or breach of conditions could appeal to the Deportation Review Tribunal (“DRT”). The test under s 22(5) was whether “it would be unjust or unduly harsh for the appellant to lose the right to be in New Zealand indefinitely” having regard to a list of mandatory, but non-exclusive, factors.

(b) Under s 105, a resident liable for deportation owing to their having been convicted of criminal offending (as would have been the case for the applicant) could appeal to the DRT. The test on appeal was:

“Whether 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.”

(c) In making this determination, the DRT was required to have regard to the mandatory, inclusive list of considerations set out in s 105(2), these being:

(i) the appellant’s age;

(ii) the length of the period during which the appellant has been in

New Zealand lawfully;

(iii) the appellant’s personal and domestic circumstances;

(iv) the appellant’s work record;

(v) the nature of the offence or offences of which the appellant has been convicted and from which the liability for deportation arose;

(vi) the nature of any other offences of which the appellant has been convicted;

(vii) the interests of the appellant’s family;

(viii) such other matters as the Tribunal considers relevant.

(d) Finally, under s 47, an overstayer could appeal to the Removal Review Authority against the requirement they leave New Zealand. The test on appeal under s 47(3) was virtually identical to the present test under s 207(1) of the Act, namely whether:

“...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 circumstances be contrary to the public interest to allow the person to remain in New Zealand.”

[61] In contrast, the regime under the Act is considerably more centralised. All humanitarian appeals against deportation, regardless of the basis on which liability arose, now proceed under s 207(1).

[62] Given that this section is worded identically to s 47(3), it is unsurprising that both parties accept that the previous case law on the interpretation of s 47(3) still applies and provides considerable assistance in determining the nature and scope of the enquiry.

[63] What was required under s 47(3) is well settled. In Ye v Minister of

_{Immigration, the Supreme Court identified three separate elements being:}¹⁸

¹⁸ Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.

(a) whether there are exceptional circumstances; (b) of a humanitarian nature; and

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

[64] The Court added that:¹⁹

“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. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. 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. That is why a generic concern on that account is not enough to outweigh fulfilment of the first criterion in s 47(3).”

[65] For the reasons discussed above these comments must be taken as applying in the context of s 207(1). Further still, as Ms Schaaf accepts, the Supreme Court has recently considered the interpretation of s 207(1) in Guo v Minister of Immigration. There the Court stated:²⁰

“The language of s 207(1) (and similar language in other provisions relating to deportation and removal) has received considerable attention in the courts. It has been held that the expression “unjust or unduly harsh” is composite in nature and that the Tribunal need not inquire separately as to whether deportation would be (a) unjust or (b) unduly harsh. 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. The public interest is not immaterial to the application of s 207(1)(a) but is primarily relevant to the application of s 207(1)(b). In determining whether deportation would be unjust or unduly harsh, the primary focus is on the personal circumstances of the person in respect of whom deportation is proposed and those of immediate family members who will be affected by that person's deportation.”

[Footnotes omitted and emphasis added]

[66] Plainly, prior to Guo, the IPT routinely applied its own test in Galanova, this being whether the gravity of an applicant’s offending, as well as any other adverse

¹⁹ _{At [32].}

²⁰ Guo v Minister of Immigration, above n 8, at [9].

considerations, outweighed the compassionate factors favouring remaining in New Zealand. In the absence of appellate authority, I accept Ms Schaaf’s submission that this may have resulted in a degree of uncertainty.

[67] However, since Guo, the position is largely settled. The test in Guo is broadly phrased. This is deliberate. Indeed, in my view rightly so, given that Parliament has expressly removed from the new provision the mandatory considerations formerly present in s 105(2). In cases concerning deportation, the enquiry is necessarily fact specific. Any attempt to formulate a fixed set of criteria for the IPT to apply would be unhelpful. Every case is different. Each must be assessed by reference to its unique set of circumstances. How the statutory framework is to be applied has been settled by the Supreme Court in Guo. I see no reason in principle to limit the IPT’s discretion by setting out a list of mandatory considerations the IPT is required to take into account under s 207(1) of the Act.

Conclusion

[68] It thus follows, even if I had found that the applicant was able to show the IPT erred in such a way as to give rise to a seriously arguable question(s) of law, I would not have considered any question of law was of such general or public importance it ought to be submitted to this Court for determination.

Conclusion

_{[69] Leave to appeal is declined.}

Moore J

Solicitors:

Ms Schaaf, Auckland

Meredith Connell, Auckland