Maddock v Immigration and Protection Tribunal

• Jurisdiction: New Zealand
• Judgment Date: 26 March 2013
• Neutral Citation: [2013] NZHC 585
• Date: 26 March 2013
• Docket Number: CIV-2012-404-4388
• Court: High Court

Between

Jacques Maddock

Appellant

and

Immigration and Protection Tribunal

First Respondent

and

Minister of Immigration

Second Respondent

Between

Jacques Maddock

Appellant

and

Minister of Immigration

Respondent

[2013] NZHC 585

CIV-2012-404-4388

CIV-2012-404-4372

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Appeal under s245 Immigration Act 2009 (appeal to High Court on point of law) and application for judicial review of the Immigration and Protection Tribunal's decision to deport applicant — applicant took issue with the delay of 11 months between the hearing of the appeal and the delivering of the decision by the Tribunal — appellant argued that since the Tribunal took so long to decide his case, its decision was based on stale information — whether the delay was unreasonable and resulted in prejudice to the applicant — whether the Tribunal ought to have re-opened the case as the evidence had become outdated and no longer reliable — whether there had been a breach of natural justice.

Counsel:

J Sutton and M Clark for Applicant/Appellant

M Coleman and A Graham for Respondent

JUDGMENT OF BREWER J

This judgment was delivered by me on 26 March 2013 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Introduction

1 Mr Maddock is a citizen of South Africa. He has committed serious crimes in New Zealand. On 31 March 2009, the Minister of Immigration ordered that he be deported. Mr Maddock appealed that decision. His appeal was heard on 27 and 28 July 2011 by the Immigration and Protection Tribunal (the Tribunal). Eleven months later, on 29 June 2012, the Tribunal dismissed the appeal.

2 Mr Maddock does not want to be deported. He now applies to this Court for an order that would have the effect of sending his case back to the Tribunal for reconsideration. The nub of his argument is that because the Tribunal took so long to decide his case, its decision was based on stale information. It might have taken a different view of Mr Maddock if it had looked at his behaviour since the appeal hearing.

Background

3 The respondent in submissions dated 15 February 2013 sets out the background to this case succinctly as follows:

• 4. Mr Maddock arrived in New Zealand with his family as a visa-free visitor on 11 December 1996 (aged 12). On 14 July 1997, Mr Maddock and his family were granted residence permits.

• 5. On 22 August 2008, Mr Maddock was sentenced to nine years' imprisonment on the charge of attempted murder and to four years' imprisonment on the charge of wounding with intent to cause grievous bodily harm.

• 6. Mr Maddock's case was referred to the Minister of Immigration (Hon Dr Jonathan Coleman) who ordered Mr Maddock's deportation on 31 March 2009 on the basis that Mr Maddock had been convicted and sentenced to a term of imprisonment for five years or more, within 10 years of gaining residency, pursuant to s 91(1)(d) of the Immigration Act 1987. Mr Maddock subsequently lodged an appeal under s 104 of the Immigration Act 1987 with the Deportation Review Tribunal (DRT). Section 105(1) provides that the DRT may quash a deportation order:

  … if it is satisfied that it would be unjust or unduly harsh to deport the applicant from New Zealand, and that it would not be contrary to the public interest to allow the applicant to remain in New Zealand.

• 7. The Immigration Act 2009 came into force on 29 November 2010 and, as a result, the DRT was disestablished and replaced by the IPT, which was required to determine Mr Maddock's appeal in accordance with the relevant provisions of the Immigration Act 1987.

• 8. The IPT heard Mr Maddock's appeal on 27 and 28 July 2011. In its decision dated 29 June 2012, the IPT found:

  • 8.1 it would be unjust or unduly harsh for Mr Maddock to be deported;

  • 8.2 it was not satisfied that it would not be contrary to the public interest for him to remain in New Zealand.

    The deportation order was confirmed.

Mr Maddock's case

4 Mr Maddock has both appealed the Tribunal's decision and filed for judicial review of it.

5 The appeal is under s 245 of the Immigration Act 2009. It is limited to a question of law. Mr Maddock was granted leave to appeal to the High Court on the following question: 1

Whether the delay between the hearing of Mr Maddock's appeal by the IPT on 27 and 28 July 2011 and the IPT's decision dismissing that appeal meant, in the particular circumstances of his case, that the IPT erred in law?

6 The focus, therefore, is on the 11 months which passed between the hearing of Mr Maddock's appeal and the delivering of the decision. This is also the focus of the application for judicial review.

7 So far as the appeal is concerned, the contention is that the 11 months period breached the obligation in s 222(1) of the Immigration Act 2009 that the appeal be determined with all reasonable speed. The Tribunal erred in reaching a decision based on outdated evidence and the decision was unconscionable and contrary to the interests of justice. 2

8 Likewise, in the application for judicial review, the 11 months period is said to mean that the appeal decision is illegal and breached natural justice. The latter ground goes back to the contention that the evidence on which the Tribunal based its decision was outdated and no longer reliable. This is also seen to breach a right to substantive fairness and to be procedurally improper.

9 At the heart of the arguments for Mr Maddock is the assessment by the Tribunal of Mr Maddock's risk to the community. This was assessed at the hearing as being low to moderate. However, the submission is that by the time the Tribunal came to issue its decision, it might have come to a more favourable assessment of Mr Maddock if it had updated its information. So, being aware of the passage of time, the Tribunal should have re-opened the case and called for updated evidence of his degree of risk.

The Tribunal's decision

10 The Tribunal began its decision by identifying the primary issue as being “whether the risk of the appellant reoffending is such that it would be contrary to the public interest for him to be allowed to remain in New Zealand”. 3

11 The Tribunal stated this to be the primary issue because it had little difficulty in deciding that the first limb of the statutory test favoured the appellant. That is to say, that it would be unjust or unduly harsh for the appellant to be deported to South Africa.

12 The Tribunal found that, given the seriousness of the offending, the appellant “would need to establish that the risk of recidivism is low in order for the public interest not to be engaged”. 4

13 In deciding this issue, the Tribunal gave particular weight to the analysis carried out by Dr Jane Freeman, a clinical psychologist engaged on behalf of the

appellant. Dr Freeman gave evidence before the Tribunal. Her assessment of the risk posed by the appellant was “low-moderate”. The Tribunal held:

[137] Having undertaken a comprehensive review of the appellant's circumstances, Dr Freeman did not regard the appellant's risk of reoffending as low. In her view, the appropriate assessment of the risk of reoffending by the appellant in like manner (serious violent offending) is low-moderate.

[138] It is, of course, the Tribunal's duty to assess the risk. In doing so we must not simply abdicate our decision to the expert witnesses whose evidence has been relied upon by the parties. However, after taking all of the evidence into account, the Tribunal is unable to find that the risk of reoffending posed by the appellant is low. It is, even following the assessment of the appellant's own clinical psychologist, at best low- moderate.

[139] In the case of this appellant, the risk is too high to expect the New Zealand public to tolerate it.

14 It is important to note that the Tribunal's decision is not challenged for error of law or process arising out of the hearing. It is accepted, at least implicitly, that the Tribunal's decision was open to it on the material before it. The challenge is that the decision should not have been made on the material before it because of the passage of the 11 months.

Delay and the law

15 All judicial bodies have an obligation to reach decisions with reasonable speed. 5 The reason is obvious. Judicial bodies decide disputes. The sooner a decision is delivered, the sooner the people affected can get on with their lives. A systemic failure to deliver decisions without excessive delay would undermine the rule of law. People would lose confidence in a system of justice which failed to respond to disputes within periods appropriate to the natures of the disputes.

16 If delay is sufficiently great that the decision is divorced from the evidence upon which it is based, then to give the decision can be an error of law. 6

17 In this case there is no evidence that the 11 months between the date of the hearing and the date of the delivery of the decision amounts to an unreasonable delay. I asked Mr Maddock's counsel, Mr Sutton, to tell me at what point in time the delay became unreasonable. He was, of course, unable to tell me. There is no rule. Each case must be looked at on its circumstances. Mr Sutton submitted that perhaps six months would have been a reasonable period in this case and that by nine months the Tribunal would certainly be straying into the territory of unreasonable delay. There is no case law on point, although in other cases with other issues much longer delays have not caused decisions to be invalid. 7

18 Ms Coleman for the respondent pointed out: 8

• (a) The Tribunal allowed an additional month post-hearing for the parties to file further evidence and submissions;

• (b) The case occurred in the changeover from the Deportation Review Tribunal to the Tribunal. As at 14 February 2013 the Tribunal was considering deportation humanitarian appeals lodged with it in December 2011;

• (c) The...