Koji MacHida v Chief Executive of Immigration New Zealand

• Jurisdiction: New Zealand
• Judge: harison,wild,kos JJ
• Judgment Date: 02 May 2016
• Neutral Citation: [2016] NZCA 162
• Docket Number: CA673/2015
• Court: Court of Appeal
• Date: 02 May 2016

Between

Koji Machida

Applicant

and

chief executive of immigration new zealand

respondent

[2016] NZCA 162

court:

harison, wild and kos JJ

CA673/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

Application for leave to appeal against a decision of the Immigration and Protection Tribunal that there were no exceptional humanitarian reasons why the appellant should not be deported — the appellant was a Japanese national who had lived and worked in New Zealand for ten years — his work visa had expired and he was liable for deportation — before living in New Zealand, the appellant lived in Australia — in 2004, he overstayed his Australian work visa and was detained — he was granted a bridging visa and permitted to depart Australia — whether the Tribunal applied the correct test for humanitarian considerations — whether a permanent prohibition of re-entry into New Zealand was an exceptional circumstance of a humanitarian nature — whether the effect of the Criminal Records (Clean Slate) Act 2004 meant the appellant had no criminal history in respect of the events in Australia — whether the Tribunal failed to have regard to articles 12 and 13 International Covenant on Civil and Political Rights (principle of freedom of movement).

counsel:

G Aulakh for Applicant

CP paterson and N J Small for Respontent

JUDGMENT OF THE COURT

• A The application for leave to appeal is declined.

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

REASONS OF THE COURT

(Given by KÓs J)

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

2 The High Court refused leave to appeal. He now applies to this Court for leave.

Factual background

3 Before living in New Zealand, Mr Machida lived in Australia. In 2004, he overstayed his Australian work visa and was detained. He was granted a bridging visa and permitted to depart Australia.

4 Then in May 2005 he came to New Zealand on a visitor visa, valid until August 2005. He was then granted a work visa, valid until October 2014. He applied for another work visa in September 2014, which was declined by Immigration New Zealand (INZ) on 17 October 2014. He then became unlawfully in New Zealand and liable for deportation. His attempt to challenge INZ's decision in the High Court was unsuccessful, and he does not take that issue any further.

5 To avoid deportation liability, Mr Machida sought a special visa under s 61 of the Immigration Act 2009 (the Act), which may be granted to anyone unlawfully in New Zealand. 1 On 20 November 2014 INZ refused that request, and Mr Machida again became liable for deportation. He appealed to the Immigration and Protection Tribunal against his deportation liability on humanitarian grounds under s 207. The Tribunal dismissed the appeal on 15 May 2015. 2

6 Mr Machida applied in the High Court for leave to appeal against the Tribunal's decision. Hinton J declined leave on 29 October 2015. 3

Application for leave

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

245 Appeal to High Court on point of law by leave

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

• …

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

• …

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

• (a) has importance extending beyond the particular case (which is what “general or public importance” entails); or

• (b) for some other reason, warrants a decision from the High Court.

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

Proposed grounds of appeal

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

• (a) The Tribunal misdirected itself at para [2] of its decision on the relevant exceptional humanitarian considerations. It failed to consider wider exceptional circumstances.

• (b) The Tribunal failed to consider the severe consequence that Mr Machida will be unable to ever re-enter New Zealand because he has been excluded from Australia. 6

• (c) The Tribunal failed to give...