Md. Ismail Hossain v Chief Executive of The Ministry of Business, Innovation and Employment

• Jurisdiction: New Zealand
• Judge: Woodhouse J
• Judgment Date: 19 June 2013
• Neutral Citation: [2013] NZHC 1484
• Docket Number: CIV-2012-404-7442
• Court: High Court
• Date: 19 June 2013

Between

Md. Ismail Hossain

Applicant

and

Chief Executive of the Ministry of Business, Innovation and Employment

Respondent

[2013] NZHC 1484

Court:

Woodhouse J

CIV-2012-404-7442

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for leave to appeal on a point of law against decision of the Immigration and Protection Tribunal (“the Tribunal”) to dismiss an appeal to the Tribunal on humanitarian grounds against liability for deportation — applicant was Bangladeshi national who, together with his family, was experiencing financial hardship – issue before the Tribunal was whether financial hardships were exceptional humanitarian circumstances under s207(1) Immigration Act 2009 (“IA”) (exceptional circumstances of a humanitarian nature made it unjust or unduly harsh for the appellant to be deported) — Tribunal ruled were not exceptional circumstances and it would not be unjust or unduly harsh for applicant to be deported — whether the Tribunal wrongly interpreted s207 (1) IA — whether the Tribunal's findings were inconsistent with the object of the provision — whether the Tribunal's decision breached s27(1) New Zealand Bill of Rights Act 1990 (right to justice — natural justice).

Appearances:

Applicant in person A Longdill for the Respondent

(ORAL) JUDGMENT OF Woodhouse J

The application

1 This is an application for leave to appeal on a point of law against a decision of the Immigration and Protection Tribunal dismissing an appeal to the Tribunal on humanitarian grounds against liability for deportation. 1

Background

2 Mr Hossain is a 29 year old Bangladeshi national. He came to New Zealand on a student visa in July 2009. In New Zealand he obtained a certificate in business. He was granted a graduate job search work permit expiring on 13 August 2011. On 10 August 2011 Mr Hossain applied for a graduate work experience visa on the basis of his employment as a check-out operator and grocery assistant. The application was declined on 14 September 2011. Mr Hossain has been unlawfully in New Zealand since then.

3 Mr Hossain exercised his right of appeal to the Tribunal pursuant to s 206 of the Immigration Act 2009 (the Act). The relevant grounds for determining an appeal on humanitarian grounds are in s 207(1) of the Act, as follows:

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's decision

4 The Tribunal identified the primary issue as being whether financial hardships currently being experienced by Mr Hossain and his family in Bangladesh are exceptional humanitarian circumstances in terms of the statutory test. I note that, in the course of the hearing in discussions with Mr Hossain, he confirmed that at the

heart of his application to the Tribunal were the particular financial hardships of his family in Bangladesh and his financial circumstances in New Zealand.

5 The facts as found by the Tribunal, which are not in issue on this appeal and could not be in issue on this appeal because it is confined to issues of law, are that Mr Hossain has no family connections in New Zealand. His father and step-mother, along with his brother and step-sister, live in Bangladesh. His mother is deceased. The Tribunal said there is no evidence of the degree to which Mr Hossain had settled in New Zealand and become part of the community in the 3 ¹/₄ years he had been in New Zealand.

6 At two points in the decision the Tribunal summarised the circumstances relied on by Mr Hossain and noted that it had taken into account the submissions and documents produced by him. As to circumstances the Tribunal's decision included the following:

There was a further discussion of circumstances when the Tribunal came to assess the appeal.

• [9] In his submissions, the appellant explains that, when his interim visa expired, he was unable to depart New Zealand for financial reasons. His part-time employment had not been enough to cover his living expenses and enable him to save money. As a result, he did not have sufficient funds to cover the cost of flying to Bangladesh. His father was unable to assist as he too had encountered financial difficulties. The appellant sets out the reasons for those difficulties in some detail. They include losses in the stock market and business investments. He also advises that his father has had health problems requiring surgery. He states that he is currently the only person in his family who can potentially earn sufficient money to support the family. Were he deported to Bangladesh, this would jeopardise his own wellbeing and that of his family.

7 After setting out s 207(1) of the Act the Tribunal referred to the decision of the Supreme Court in Ye v Minister of Immigration. 2 This included, in particular, the discussion of the meaning of exceptional circumstances at [34] of the decision of the majority. For Mr Hossain's assistance, bearing in mind that he has conducted this application on his own behalf (and has done so with competence), I will include in the transcript of this oral judgment the full discussion by the Supreme Court which

extends over a number of paragraphs. The Supreme Court was considering s 47(3) of the Immigration Act 1987. It is the same as s 207(1) of the Act in all material respects.

• [33] It is important to consider the s 47(3) test in its statutory context. Section 47(3) is in a part of the Act which concerns removal of overstayers from New Zealand. Its terms must be read against the general rule that overstayers must leave New Zealand. 3 Parliament has made a clear policy decision that overstayers should generally be compulsorily removed, if they do not leave voluntarily when asked to do so. The rationale for this policy approach includes the importance of border control, New Zealand's right to exercise its own immigration policies and the avoidance of overstayers getting an advantage over those who go through the correct processes. However, it can equally be said that Parliament has accepted that people may be excepted from the general rule if they satisfy the requirements of s 47(3).

• [34] That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. 4 It is unnecessary and undesirable to attempt to define the compass of the word “humanitarian”. It is unlikely to be difficult to decide whether the circumstances of a particular case fulfil that description. If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.

• [35] 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).

• [36] The flavour of the subsection as a whole, with its interweaving of the concepts of exceptional circumstances, injustice or undue harshness and the public interest suggests that Parliament, being mindful of humanitarian considerations, contemplated overstayers being allowed to remain in New Zealand if there were humanitarian circumstances of a sufficiently unusual kind that their remaining would not undermine the general importance of maintaining the integrity of the immigration system. The test was designed to be strict but was seen as representing an appropriate reconciliation of personal humanitarian concerns with relevant aspects of the public interest.

• [37] One further point should be mentioned. The link between “exceptional circumstances of a humanitarian nature” and “unjust or unduly harsh” provided by the words “that would make it” can be read in two ways. The first is to hold that the presence of the relevant exceptional circumstances necessarily demonstrates injustice or undue harshness with no further assessment being required. On this basis the words “that would make it” mean that the necessary injustice or undue harshness derives from the very fact of there being exceptional...