Maddock v Immigration and Protection Tribunal

JurisdictionNew Zealand
CourtHigh Court
Judgment Date26 March 2013
Neutral Citation[2013] NZHC 585
Docket NumberCIV-2012-404-4388

[2013] NZHC 585

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4388

CIV-2012-404-4372

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
Counsel:

J Sutton and M Clark for Applicant/Appellant

M Coleman and A Graham for Respondent

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in prejudice to the applicant — whether the Tribunal ought to have re-opened the case as the evidence had become outdated and no longer reliable — whether there had been a breach of natural justice.

The issues were: whether the delay was unreasonable and resulted in prejudice to M; whether the Tribunal ought to have re-opened the case in view of the delay; whether the evidence on which Tribunal based its decision was outdated and no longer reliable; and, whether there had been a breach of natural justice.

Held: All judicial bodies had to reach decisions with reasonable speed. If a delay was sufficiently great that the decision was divorced from the evidence on which it was based, then to give the decision could be an error of law.

The delay was not unreasonable. The delay was due to the fact that the Tribunal allowed an additional month post-hearing for the parties to file further evidence and submissions and the case occurred in the changeover from the Deportation Review Tribunal to the Tribunal. The consideration time also included the 2011-2012 Christmas/New Year holiday period. Further there was no prejudice relevant to the validity of the Tribunal's decision. All that happened because of the delay was that M remained longer in a country which he did not wish to leave. Although the 11 month period was one of anxiety and stress for M and his family, this was inherent in the process and did not result in prejudice legally relevant to the validity of the Tribunal's decision.

Under Practice Note 1/2008 (Deportation Review Tribunal) 21 (post hearing evidence), leave could be sought for filing new evidence at any time prior to the date of publication of the Tribunal's (Tribunal's) decision. However, no leave was sought by M. No steps were taken in this regard until three months after the delivery of the Tribunal's decision.

A delay did not impose on the Tribunal an onus to re-open a proceeding. The Tribunal was entitled to rely on the evidence put before it at the hearing by the parties. It was for the parties to apply to the Tribunal if it was apprehended that the passage of time rendered the evidence invalid. However, in exceptional cases where the Tribunal was not satisfied that the information provided by the parties was sufficient for it to make a proper determination, it had the power to seek more information.

There was nothing in the particular circumstances of the case that made the decision to dismiss the appeal following the 11 months period an error in law. For the decision to amount to an error of law, the particular circumstances would have to reveal prejudice or demonstrate that the decision had become divorced from the evidence and they did not.

A breach of natural justice was not made out. A second expert opinion as to M's degree of risk to the community was more or less similar to the opinion expressed by the first expert. Although there was some improvement in the risk factor, the conclusions of both experts were very similar. Further, there was no onus on the Tribunal to re-open a proceeding just because a certain amount of time passed. It was entitled to rely on the evidence put before it at the hearing. It was open to the parties to apply to put further evidence before the Tribunal and the Tribunal would have to consider, on usual principles of relevance and newness, whether to receive the evidence or not. While a refusal to accept new evidence or further evidence could give rise to a claim of breach of natural justice, this was not the case here. There was no procedural impropriety and the delay did not result in unfairness to M. The 11 month period was not demonstrated to be unreasonable. No relevant prejudice was identified and nor was it shown that the Tribunal's decision was based upon outdated evidence as to M's risk of reoffending.

Appeal dismissed. Application for judicial review dismissed.

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...

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