Samuela Faletalavai Helu v Immigration and Protection Tribunal

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,Glazebrook,Glazebrook J,Arnold JJ
Judgment Date26 March 2015
Neutral Citation[2015] NZSC 28
Date26 March 2015
Docket NumberSC 72/2013

[2015] NZSC 28

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ

SC 72/2013

BETWEEN
Samuela Faletalavai Helu
Appellant
and
Immigration and Protection Tribunal
First Respondent
Minister of Immigration
Second Respondent
Counsel:

A Schaaf and H N Ratcliffe for Appellant

U R Jagose and J Foster for Respondents

Appeal against a decision of the first respondent which upheld a deportation order issued by the second respondent — the appellant had become eligible for deportation under s91 Immigration Act 1987 “IA” (deportation of holders of residence permits following conviction) because he had committed an offence, when aged 17, for which he was sentenced to more than 12 months imprisonment within five years of obtaining a residency permit — appellant had arrived in New Zealand when he was aged 6 years and obtained residency 6 years later — the Tribunal used had a “sliding scale” approach to assess the risk of reoffending and whether it would be contrary to the public interest for the appellant to remain in NZ — whether the Tribunal had incorrectly approached the assessment required under s105 IA (Tribunal may quash deportation order) by adopting a test that did not accord with the IA and was too rigid — whether the Tribunal failed properly to consider art 12(4) International Covenant on Civil and Political Rights “ICCPR” (no one shall be arbitrarily deprived of the right to enter his own country) by recognising that NZ was the appellant's “own country” and that it failed properly to take into account his age and its relevance to the protection of family contained in art 17 ICCPR (no one shall be subjected to arbitrary or unlawful interference with family) and art 23(1) ICCPR (family was the fundamental unit of society and was entitled to protection).

The issues were: whether the Tribunal had incorrectly approached the assessment required under s105 IA (Tribunal may quash deportation order); and whether the Tribunal failed properly to consider art 12(4) International Covenant on Civil and Political Rights “ICCPR” (no one shall be arbitrarily deprived of the right to enter his own country) by recognising that NZ was H's “own country” and that it failed properly to take into account his age and its relevance to the protection of family contained in art 17 ICCPR (no one shall be subjected to arbitrary or unlawful interference with family) and art 23(1) ICCPR (family was the natural and fundamental group unit of society and was entitled to protection).

Held: The Tribunal had erred in its approach in two principal respects. Section 105 IA did not require two separate and distinct inquiries in which a conclusion that it would be unjust and unduly harsh to deport was simply a threshold qualification for a public interest determination, taken without reference to all the factors that make deportation unjust and unduly harsh.

The test adopted by the Tribunal had wrongly limited its inquiry into the public interest by using a “sliding scale” of seriousness applied to prediction of re-offending; it had taken the view that only a low risk of recidivism would preclude the public interest being engaged. The risk above a low level was treated by the Tribunal as determinative because, as it had said explicitly, it considered such risk “unacceptable”. There was no basis in the IA for predictions of risk of reoffending to be allowed to dominate the public interest control under s105 IA. The Tribunal's conclusion had failed to take into account a number of matters that should have been considered either because the law required them to be taken into account or because they were relevant to assessment of the public interest. The disruption to the family unit, H's youth, and his identity and connection with NZ should all have been taken into account as highly relevant to assessment of whether it was contrary to the public interest to permit him to remain in NZ. The decision was substantively unreasonable in permitting the deportation of H when NZ was his only home and he had no real connection with the country of his birth.

Under s18 New Zealand Bill of Rights Act 1990 “NZBORA” (freedom of movement), everyone lawfully in NZ had the right to freedom of movement and residence in NZ. Section 18(4) NZBORA affirmed that human rights were engaged in removing someone who was lawfully in NZ. Once deportation was effected, H's residency permit was cancelled by operation of law and he would be prevented from re-entering NZ. His right of connection with NZ would therefore be effectively severed. Articles 17 International Covenant on Civil and Political Rights “ICCPR” (no one shall be subjected to arbitrary or unlawful interference with family) and 23(1) ICCPR (family was the natural and fundamental group unit of society and was entitled to protection) protected family. Observance of human rights and international obligations were both important aspects of the public interest. The Tribunal had erred in not taking into account the facts that H had no country of his own other than NZ when assessing whether it was not contrary to the public interest for him to remain.

The Court was divided on the approach to be taken under s105 IA. McGrath, William Young and Arnold JJ held that the test to be applied under s105 IA involved two separate inquiries. The test of whether or not it was contrary to the public interest for H to remain in NZ was to be addressed separately from the inquiry into whether it would be unjust or unduly harsh to deport. The humanitarian considerations that came into the unjust or undue harshness test, while they must be taken into account in the second inquiry where they related to the public interest, must not undermine the function of the public interest test as a control on the humanitarian limb of s105 IA. They also held that appropriate weight was given to public interest considerations of family unity and H's age. Elias CJ and Glazebrook J considered that the Tribunal had failed properly to take into account H's age and identification with NZ. Elias CJ took the view that, if it had done so, the Tribunal could only have concluded that deportation was a disproportionate response and not in the public interest and therefore would have quashed the Tribunal's determination without remitting the matter.

There was an underlying policy in the IA that those who committed serious crimes while in NZ under a residence permit become eligible for deportation. Where deportation would be unjust or unduly harsh the IA provided for a humanitarian exception, but there was also a control on the operation of the humanitarian exception. Although qualifying injustice or undue harshness had been shown, before it could allow the appeal, the Tribunal must also be satisfied of the further requirement that it would not be contrary to the public interest to allow H to remain in NZ.

The Tribunal was required to make an overall judgment of the circumstances. Its assessment of the likelihood of recidivism and the nature and seriousness of prospective future offending would be important factors. In the end the Tribunal must be satisfied that it was not contrary to the public interest for H to remain in NZ before a finding favourable to H could be made.

Matters that were relevant to the finding that it was unjust or unduly harsh to deport H must be considered in assessing the public interest where they were relevant to it, along with the general public interest in avoiding unjust or unduly harsh outcomes. However, the consideration given to the finding that deportation would be unjust or unduly harsh may not undermine the function of the second public interest inquiry as a control on the humanitarian test that the first limb of s105(1) IA set out. The Tribunal must accordingly address the interests of H's family and not being separated as they relate to the public interest in the individual case. That reflected the affirmation in art 23(1) CCIPR the importance of the family unit. A key factor in the assessment of where the public interest lied was the risk of recidivism: the risk of future offending should not be permitted to displace assessment of the risk of future offending or harm to the public. The sliding scale approach could provide some assistance as long as it was applied in consideration of the particular case, as it affects the public interest, and not in a rigid way.

The Court held by majority (Elias CJ, McGrath and Glazebrook JJ) that the test under s105 IA had been wrongly applied and that the matter should be remitted to the Tribunal for its reconsideration. Elias CJ and Glazebrook J took the view that the Tribunal had applied a sliding scale approach in which a moderate risk of reoffending was determinative instead of considering all matters which were relevant to the public interest. McGrath J considered that the sliding scale approach had been applied too simplistically. William Young and Arnold JJ considered that the Tribunal had turned its mind conscientiously to the relevant factors and had reached its assessment of the public interest having taken them into account and would have dismissed the appeal.

Appeal allowed. The Tribunal's confirmation of the deportation order was quashed. The decision was remitted to the Tribunal for reconsideration.

  • A The appeal is allowed.

  • B The Tribunal's confirmation of the deportation order is quashed.

  • C The appeal to the Tribunal is remitted to it for reconsideration in the course of which the Tribunal is to apply the test under s 105 of the Immigration Act 1987 that is set out in paras [167] to [176] of the reasons.

  • D Costs are reserved. Application may be made in writing if necessary.

JUDGMENT OF THE COURT
REASONS
Elias CJ [1]
McGrath J [106]
Glazebrook J [202]
William Young and Arnold JJ [216]
Elias CJ
1

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