Hai v Minister of Immigration

• Jurisdiction: New Zealand
• Judge: Williams J
• Judgment Date: 15 March 2019
• Neutral Citation: [2019] NZCA 55
• Court: Court of Appeal
• Docket Number: CA536/2017
• Date: 15 March 2019

Between

Mohammed Naushad Hai

Applicant

and

Minister of Immigration

First Respondent

and

Immigration and Protection Tribunal

Second Respondent

[2019] NZCA 55

Court:

Winkelmann, Clifford and Williams JJ

CA536/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Immigration — appellant served with deportation liability notice for criminal offending — extent the Immigration and Protection Tribunal are required to consider international obligations — whether fact that appellant lived separately from his partner and children was relevant

Counsel:

E Telle for Applicant

H T N Fong for First Respondent

No appearance for Second Respondent

• A Application to adduce further evidence granted.

• B Application for leave to appeal granted in relation to the following questions:

  • (a) Was the Tribunal's finding, that because Mr Hai did not permanently reside with his children the negative impact on the children of deportation was outweighed by other factors, made without evidence reasonably capable of supporting that conclusion, especially in light of the new evidence of Ms Wikaira and Dr Armstrong?

  • (b) If the answer to question (a) is yes, did this cause the Tribunal to misapply arts 3 and 9 of the United Nations Convention on Rights of the Child?

  • (c) If the answer to question (b) is yes, should the proceeding be referred back to the Tribunal for rehearing?

• C The application for leave to appeal is otherwise declined.

• D The respondent must pay the applicant costs for a standard application on a band A basis and usual disbursements.

• E Costs in the High Court are to be dealt with in that Court.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Williams J)

1 Mr Hai is subject to a deportation liability notice. His appeal to the Immigration and Protection Tribunal (the Tribunal) against that notice was dismissed. 1 The appeal was brought on humanitarian grounds, but the Tribunal found that it would not be unjust or unduly harsh to deport Mr Hai. 2 Separate applications for leave to appeal and to bring judicial review proceedings against the Tribunal decision were declined by Woolford J in the High Court. 3 Mr Hai now seeks leave from this Court under s 245(1) of the Immigration Act 2009 (the Act) to bring his appeal in the High Court. The dismissal of the application for leave to bring judicial review proceedings was not appealed.

2 Mr Hai has identified three questions of law for the appeal if leave is granted:

• (a) Whether the Tribunal erred in law by failing to consider various international obligations, in particular arts 13, 15(1) and 23 of the International Covenant on Civil and Political Rights (ICCPR); 4

  arts 3(1), 3(2), 9(1), 12(1), 12(2) and 18(1) of the United Nations Covenant on Rights of the Child (UNCROC); 5 and art 10(1) of the International Covenant on Economics, Social and Cultural Rights (ICESCR). 6

• (b) Whether the Tribunal erred in fact, amounting to an error of law, in finding that Mr Hai and his partner “choose not to live together and there is no current plan to do so in the near future”. 7

• (c) Whether the Tribunal erred in fact, amounting to an error of law, in finding that Mr Hai's “youngest child is too young to have formed a close attachment to [Mr Hai] such that he would realise [Mr Hai's] absence”. 8

3 In addition to his application for leave to appeal, Mr Hai also sought leave to adduce further evidence in this Court. The new evidence comprised his own affidavit which updated his employment and travel situation and explained why the following two further affidavits were only available at a late stage. The other two affidavits were from a teacher of Mr Hai's two younger daughters and from a consultant forensic psychiatrist. We will return to that evidence and the application below.

Factual background

4 Mr Hai is a Fijian citizen who has spent 31 of his 59 years resident in New Zealand. He came to this country in 1987 on a visitor's visa but stayed after its expiry. He married Marie Diane Peri, a New Zealand citizen in 1991 and they now have three adult children. In that year he pleaded guilty to eight counts of using a document to obtain a pecuniary advantage. He was served with a removal warrant and returned to Fiji in 1993. In 1994 he was allowed to enter New Zealand again to be with his family. In time the marriage failed and in around 2010 Mr Hai began

a relationship with his current partner Ms Winikerei. They have three young children together: two daughters and a son. At the time of the Tribunal's decision they were five, four and one respectively. Mr Hai lives and works in Auckland. Ms Winikerei and the children live in Omanaia which is a small rural kainga in Hokianga

5 Between 1998 and 2012, Mr Hai defrauded Work and Income New Zealand of $115,470.00 by obtaining a Domestic Purposes Benefit when he was not in fact a solo parent, and providing false information to acquire other benefits, including the use of multiple identities. He pleaded guilty to 12 counts of using a document to obtain a pecuniary advantage and seven counts of obtaining by deception. He was sentenced to 20 months' imprisonment and ordered to pay reparation. All in all, Mr Hai has at least 29 New Zealand convictions for dishonesty, driving offences (including multiple for drink driving) and domestic violence. The Minister of Immigration (the Minister) issued a deportation liability notice under s 161 of the Act, over one year after Mr Hai's release from prison. Mr Hai appealed to the Tribunal against his liability to deportation in accordance with s 161(2)(a) of the Act.

6 The statutory test to be applied in an appeal on humanitarian grounds is set out in s 207(1) of the Act. As relevant to the issue in this application it provides:

207 Grounds for determining humanitarian appeal

(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.

…

The Tribunal decision

7 The Tribunal heard evidence from Mr Hai and his wife Marie Diane Hai. It also received a written statement from Mr Hai's current partner, Ms Winikerei.

8 Mr Hai's evidence was that he continued to financially support his older children (from Mrs Hai) and that he also provides some financial support for the young children (from Ms Winikerei). His evidence was summarised by the Tribunal in these terms:

[22] As to his three younger children by Ms Winikerei, [Mr Hai] says that he buys them clothes and shoes as they need them and estimates that he has spent some $4,000 on them in the past year. He does not provide financial assistance to Ms Winikerei herself, however. While they are living apart at the moment, he hopes that they will be able to continue their relationship in the future. He says that they are living apart only because of his work commitments in Auckland and the fact that Ms Winikerei needs to be near her elderly father, following the recent death of her mother. A further complication is that Ms Winikerei's siblings do not like him.

9 The evidence of Mrs Hai was that her relationship with Mr Hai continued “on good terms” and that he supported her financially. 9

10 Ms Winikerei's perspective was that economic and whanau circumstances demanded they live apart for the time being. 10 The written statement provided by Ms Winikerei was summed up by the Tribunal in these terms:

[29] … He needs to be in Auckland for his work and she needs to be in the Hokianga region for the children. [Mr Hai] comes up regularly to see them all.

[30] If the appellant is deported, Ms Winikerei will be “lost” without his support, both financial and emotional. The children love him and he loves them. He supports them “emotionally and in a fully paternal role”.

11 The Tribunal then set out the test in s 207(1) of the Act and made its own assessment. The Tribunal found that there were exceptional humanitarian circumstances in Mr Hai's case. 11 These were as follows:

• (a) Mr Hai had been lawfully resident in New Zealand for 23 years.

• (b) The three younger children would no longer be able to maintain a close physical relationship with their father. The Tribunal considered

  “their entire development” would take place without any “close input from their father”. 12

12 These circumstances, the Tribunal found, satisfied the first stage of the s 207(1) test but only by “a small margin”. 13 In coming to this conclusion, the Tribunal took into account that while Mr Hai continued to play a “meaningful role” in Ms Winikerei's life, she was nonetheless “used to living on her own for extended periods” and has the support of her family resident in the Hokianga area. 14 Furthermore, the Tribunal considered that the youngest of the children, was, “too young to have formed a close attachment to [Mr Hai] such that he [the son] would realise [Mr Hai's] absence”. 15

13 The Tribunal then considered whether those circumstances meant that deportation would be unduly harsh or unjust. 16 The Tribunal concluded it would not. 17 The countervailing considerations taken into account were as follows:

• (a) Mr Hai's benefit fraud was serious. 18

• (b) Mr Hai had already received an indulgence following offending in 1991 when, having been deported, he was allowed to return to New Zealand in 1994. 19

• (c) Overall, he had a poor record of compliance with New Zealand law while resident here. 20

• (d) The impact of deportation on the younger three children would be moderated: 21

  … by the reality that [Mr Hai] currently (and, as best as the Tribunal can determine, for the foreseeable future) does not live with...