Samuela Faletalavai Helu v Immigration and Protection Tribunal

• Jurisdiction: New Zealand
• Judge: Elias CJ,Glazebrook,Glazebrook J,Arnold JJ
• Judgment Date: 26 March 2015
• Neutral Citation: [2015] NZSC 28
• Docket Number: SC 72/2013
• Court: Supreme Court
• Date: 26 March 2015

BETWEEN

Samuela Faletalavai Helu

Appellant

and

Immigration and Protection Tribunal

First Respondent

Minister of Immigration

Second Respondent

[2015] NZSC 28

Court:

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

SC 72/2013

IN THE SUPREME COURT OF NEW ZEALAND

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).

Counsel:

A Schaaf and H N Ratcliffe for Appellant

U R Jagose and J Foster for Respondents

• 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 Conscientious decision-makers commonly seek to organise their exercise of statutory powers of decision according to sequences, tests, and balances which they take from close analysis of the statutory text and scheme. Such methodology allows them to demonstrate fidelity to the legislative purpose and promotes consistency and better justification of conclusions. Care is needed however, to ensure both that the methodology is consistent with the terms of the statute and that it avoids over- refinement through such elaboration, especially when contextual value-judgment is inescapable. The risk then is not only that the methodology may mask the ultimate value-judgment required with a show of objective rationality, but that it may itself compel outcomes which would not be accepted if the choice for the decision-maker was recognised to be constrained only by the need to reach the decision he or she believes to be right after taking into account all considerations contextually relevant. I think the present appeal illustrates the trap.

2 The appellant, Samuela Faletalavai Helu, was eligible for deportation under the Immigration Act 1987 because he had committed an offence for which he was sentenced to more than 12 months imprisonment within five years of obtaining a residency permit. The offending and further subsequent offending entailed violence or aggression, although not at the higher end of the scale. After the Minister of Immigration ordered Mr Helu's deportation to Tonga, the country of his birth, he appealed under s 104 of the Act to the Immigration and Protection Tribunal. 1

3 The Tribunal is empowered by s 105 to quash an order for deportation “if it is satisfied that it would be unjust or unduly harsh to deport the appellant from New Zealand and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand”. In Mr Helu's case, the Tribunal considered that it was obliged by s 105 to undertake two sequential and distinct inquiries.

4 The Tribunal first addressed whether it would be “unjust or unduly harsh” to deport Mr Helu by “weighing the seriousness of the offending giving rise to the deportation order and any other offending, with the compassionate factors favouring

the appellant remaining in New Zealand, having particular regard to the matters set out in section 105(2)”. 2 It concluded that it would be “unjust or unduly harsh” for him to be deported. 3

5 The Tribunal came to that conclusion, notwithstanding the violent offending against which the comparative standards of “unjust” and “unduly harsh” were to be assessed. The circumstances that weighed with it were:

• • Mr Helu, 17 years old at the time of the qualifying offending and 20 years at the time of the Tribunal's decision, had lived in New Zealand since the age of six and Tonga was “culturally different and comparatively unfamiliar to him” ; 4

• • if deported to Tonga, Mr Helu would be permanently separated, with little prospect of even occasional visits, from his immediate family, to whom he is close and which is a “strong supportive” family;

• • loss of direct contact with his family would be a significant loss to Mr Helu and damaging to his rehabilitation;

• • the separation would be distressing for Mr Helu's family, especially his mother;

• • Mr Helu would have no clear means of financial support in Tonga and had no relatives there apart from an aunt and her husband whom he did not know;

• • Mr Helu would find it difficult to adapt to a life in Tonga isolated and without the support of his immediate family and dependent on extended family whom he does not know, particularly given his own lack of confidence and difficulty in coping with the stress that would be involved in living in an unfamiliar environment.

6 As a second and distinct step in the s 105 determination, the Tribunal next turned to the question whether it was satisfied that it “would not be contrary to the public interest” for the appellant to remain in New Zealand”. In this “public interest” inquiry it did not weigh the “compassionate factors” personal to Mr Helu and his family that had led it to find that deportation would be “unjust or unduly harsh”. The considerations which had led to its conclusion that removal would be unjust and unduly harsh were treated as spent unless they were also of “public” interest and only to that extent. Only one such overlapping matter was identified by the Tribunal: a public interest (confirmed by international covenants to which New Zealand is a party) in protection of the family.

7 The Tribunal identified as relevant to the public interest both the removal of someone who posed a risk to public safety (because of the danger of further offending) and the public interest in protecting family unity. It indicated its approach was that “[g]iven the nature of the appellant's violent offending, the Tribunal finds that only a degree of risk [of recidivism] at the low end of the scale would suffice to preclude the public interest being engaged”. 5 Since the assessment of a psychologist was that Mr Helu's risk of reoffending in similar manner was “moderate”, the Tribunal concluded that “the positive public interest considerations relating to the appellant's separation from his family” did not outweigh “the public interest in removing from New Zealand a person who, because of his violent offending, poses an unacceptable risk to public safety”. 6

8 For the reasons given in what follows, I have concluded that the Tribunal erred in its approach in two principal respects.

9 First, s 105 does not require two separate and distinct inquiries in which a conclusion that it would be unjust and unduly harsh to deport is simply a threshold qualification for a public interest determination taken without reference to all the factors that make deportation unjust and unduly harsh. The purpose of the control is that, despite the injustice or undue harshness, it may nevertheless be contrary to the publicinterest to allow the person to remain in New Zealand (so that the Tribunal

cannot be satisfied of the condition imposed by s 105). That was the approach taken in relation to an identically structured condition in s 47(3) of the Immigration Act by this Court in Ye v Minister of Immigration. 7 It is an assessment that, in the context of human rights, imports proportionality analysis which cannot ignore the considerations which led to the conclusion that deportation would be unjust and unduly harsh. In concluding that Ye should be adhered to (so that the Tribunal must consider whether deportation is required in the public interest against the datum that it is unjust and unduly harsh), I differ from the approach taken by McGrath, Young and Arnold JJ in this Court

10 Secondly, the test adopted by the Tribunal wrongly constrained its inquiry into the public interest by a formula which compelled the outcome when, on the basis of a “sliding scale” of seriousness applied to prediction of re-offending, it took the view that only a low risk of recidivism would “preclude the public interest being engaged”. 8 By “being engaged”, it is clear that the Tribunal did not mean that recidivism above a low level was merely relevant when assessing whether it was not contrary to the public interest to allow Mr Helu to remain. Rather, risk above a low level was treated by the Tribunal as determinative because, as it said explicitly, it considered such risk “unacceptable”. I do not think the approach accords with the statute. I consider the statute and the public...