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Court of Appeal of New Zealand |
Last Updated: 23 January 2014
IN THE COURT OF APPEAL OF NEW ZEALAND
CA225/04
CA54/05
BETWEEN THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Appellant
AND TUI TAITO, ITANEI TAITO, PIILUA TAITO, ANA TAITO, FAAFETAI TAITO, AND
IULIANO TAITO Respondents
Hearing: 12 and 13 October 2005
Court: William Young, Chambers and Panckhurst JJ Counsel: I C Carter, B Keith and K M Howard for Appellant
H N Ratcliffe and J A Sutton for Respondents
Judgment: 8 February 2006
JUDGMENT OF THE COURT
A The appeal on the s 115A appeal (CA54/05) is allowed.
B The appeal on the judicial review application (CA225/04) is
dismissed.
D Costs
reserved.
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR V TAITO AND ORS CA CA225/04 8
February 2006
REASONS
(Given by Chambers J)
Removal of Samoan overstayers
[1] Tui Taito, his wife Ana, and four of their seven children
came to New Zealand from American Samoa on visitors’
permits in
2000. Their latest permits expired on 15 March 2002. Since that time, they
have been unlawfully in New Zealand.
By s 45(1) of the Immigration Act 1987,
they were obliged to leave New Zealand.
[2] The family exercised its right of appeal under s 47 of the
Immigration Act. There is under that section only one ground
of appeal:
(3) An appeal may be brought only on the grounds that there
are exceptional circumstances of a humanitarian nature
that would make it unjust
or unduly harsh for the person to be removed from New Zealand, and
that it would not in all the
circumstances be contrary to the public interest to
allow the person to remain in New Zealand.
(4) For the purposes of subsection (3), the mere fact that a
person’s circumstances are such that the person would meet any
applicable
Government residence policy requirements for the grant of a residence permit
does not in itself constitute exceptional
circumstances of a humanitarian
nature.
[3] The Removal Review Authority dismissed the appeal. It found that the Taitos had not established that there were exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the Taitos to be removed from New Zealand. The Taitos appealed to the High Court under s 115A and also brought an application for judicial review under the Judicature Amendment Act 1972. The appeal (which we shall call “the s 115A appeal”) and the application for review were heard together. On 23 September 2004, Baragwanath J delivered a reserved decision: HC AK CIV2004-485-1987 and CIV2004-404-6432. His Honour allowed the s 115A appeal and referred the case back to the authority for its reconsideration in the light of His Honour’s reasons for judgment. No order was required, he said, on the application for judicial review.
[4] The Chief Executive of the Department of Labour then sought leave
to appeal to this court against the s 115A decision.
Leave to appeal was
required under s 116 of the Immigration Act. Under that section, appeals may be
brought here only on points
of law. Those points are restricted to points
which, by reason of their general or public importance or for any other reason,
ought
to be submitted to the Court of Appeal for its decision. The Crown, as we
shall refer to the appellant, set out no fewer than 17
questions of law which,
it submitted, ought to be referred to this court. Baragwanath J allowed 14 of
them. We comment in passing
that this seems an excessive number; in reality,
this appeal boils down to no more than a handful of issues.
[5] No leave was required for the appeal on the application
for review proceeding. The Crown raised the question
whether there was even a
“decision” to appeal, given that no decision had been made on
it.
[6] Before we come to the issues on these appeals, we shall set out
briefly the authority’s reasons for dismissing the
appeal and Baragwanath
J’s reasons for allowing the further appeal.
The Removal Review Authority’s decision
[7] The crucial issue before the authority was whether “it [was]
imperative that Mr Taito and his family remain in New
Zealand to care for his
elderly and ailing mother, Mrs Tuavao”: RRA AAS44832-44835 12 August 2003
at [23]. Mrs Tuavao is a
New Zealand citizen. She is severely disabled,
unable to stand to cook, and needs assistance with bathing and toileting. The
Taitos
argued that they had been looking after Mrs Tuavao since they came to New
Zealand and that they needed to continue as her caregivers.
[8] The authority acknowledged at [24] the need to give “very active consideration to family relationships”, citing Tavita v Minister of Immigration [1994] 2 NZLR 257. The authority also acknowledged “the Polynesian cultural significance of extended family, and caring for that family”. But it was in that context that the authority noted that Mr Taito had eight siblings, all resident in
New Zealand. While, as the authority noted, some of them had
“very full commitments in their own lives”
(at [29]), the authority
nonetheless considered that these “numerous able-bodied adult
children” could be reasonably
expected to modify their living arrangements
to support their elderly mother: at [29].
[9] The authority concluded:
[32] The Authority is not satisfied that there exist
exceptional humanitarian circumstances which would make
it unjust or unduly
harsh for any of the six appellants to be required to leave New Zealand. In
taking this view, the Authority
has had full regard to the material
relating to Mrs Tuavao and the appellants’ roles in caring for her.
While being
allowed to remain in New Zealand would no doubt make it easier for
the appellants and their extended family to make desirable choices
for Mrs
Tuavao, the difficulties are neither exceptional nor so difficult in kind or
degree that the appellants can reasonably expect
to be exempt from the usual
immigration requirements.
[33] The Authority has considered the appellants’ grounds of
appeal and their circumstances each in turn, and cumulatively,
including those
of the minor children in this matter. The children’s heartfelt
wishes are undoubtedly to remain
in New Zealand with their family and
grandmother. However, there is no evidence that their best interests will be
unduly jeopardised
by returning to Samoa with their parents. Overall, there are
no grounds that meet the threshold test.
[34] Having come to that conclusion the Authority is therefore
not required to consider the public interest issue arising
under section
47(3).
The High Court decision
[10] The Taito family raised three questions of law for
determination under s 115A(3).
[11] The first ground of appeal was that Tui Taito fulfilled
the criteria for eligibility for the issue of a residence
permit. Baragwanath
J was satisfied that he did not fulfil those criteria: at [27]. That decision
is not challenged before us.
[12] The family’s second contention was that the fact that the New Zealand Immigration Service had mislaid four of the appellants’ passports for a sustained period was of relevance to the legality of the authority’s decision. Baragwanath J
was satisfied that it was irrelevant that the passports had been mislaid: at
[28]. Again, that finding is not in issue before us.
[13] The third issue was whether the authority gave “legally
sufficient reasons for its conclusion”: at [29]. This
court’s
decision in Lewis v Wilson and Horton Limited [2000] 3 NZLR 546 was
cited. It was on this ground that, at least notionally, the Taitos won.
Baragwanath J found that the reasons
given by the authority lacked “the
degree of specificity...for an affirmative conclusion that an alternative care
regime will
satisfy the law’s requirements for the care of the
vulnerable”: at [80].
[14] We say that the Taitos “notionally” won on the
third ground of appeal because it is not in dispute
that the real
ground on which they won was not something their counsel had advanced.
The ground on which they succeeded
was in truth a ground developed by
Baragwanath J in the course of considering his decision. He invited further
submissions after
the oral hearing and it was those submissions that led to the
Taitos’ success. Indeed, at an earlier point in his reasons
for judgment
([38]), Baragwanath J referred to a “fourth contention”, to which he
gave the heading “Human Rights”.
Mr Carter, for the Crown before
us, took great exception to the judge having given judgment on a ground that was
not referred to
in the points on appeal, “where no application to amend,
or order allowing amendment, [had] been made”.
[15] Baragwanath J considered that the authority had failed to consider
adequately Mrs Tuavao’s position, and in particular
her rights under s 9
of the New Zealand Bill of Rights Act 1990. Section 9 provides:
Everyone has the right not to be subjected...to cruel, degrading,
or disproportionately severe treatment...
[16] In the circumstances, Baragwanath J considered Mrs Tuavao’s “minimum entitlement” under that section to be an “assurance as to her security”: at [76]. He considered that the authority’s decision left her security uncertain, and that was not good enough. The Crown had suggested that State care would be available for Mrs Tuavao if her other children were not able to look after her, but Baragwanath J considered that that option had to be “discarded”. He thought that “the substitution
of the non-family care contemplated in the report of 26 May 2004 [would not]
compensate Mrs Tuavao for loss of family life with its
elements of love,
devotion and fidelity that cannot be expected of others”: at [76]. (The
report of 26 May 2004 was a report
from Counties Manukau District Health Board,
indicating the kinds of State support available to Mrs Tuavao, including rest
home level
care.)
[17] His Honour directed that the matter be referred back to the
authority “with directions to reconsider [the appeal] in
the light of this
judgment”: at [81]. On our reading of His Honour’s judgment, that
would mean the authority would have
to be satisfied that the other members
of the family would be able to look after Mrs Tuavao adequately before
there
could be any suggestion of Mr and Mrs Taito and their children being
required to leave New Zealand. Anything less than that would
violate Mrs
Tuavao’s rights under s 9 of the Bill of Rights.
Issues on the appeals
[18] As we have already said, the Crown was granted leave to bring 14
questions of law to this court. We do not see it as necessary
to answer all of
them. Others of them can be considered together.
[19] The first issue is whether “the reasons for the
authority’s conclusion [were] sufficient having regard to the
statutory
context in which the authority operates and its statutory procedure”.
(This was in fact the second question of law
in respect of which leave has been
granted.)
[20] The second issue is whether Mrs Tuavao has the right to be looked after by members of her family. The authority acknowledged the importance of “family relationships”, but Baragwanath J went much further. It is clear from his judgment that, unless it were affirmatively shown that some other member of the family could look after Mrs Tuavao, Mr Taito had to be allowed to remain in New Zealand. (This
issue spans the seventh to 14th questions.)
[21] The third issue on the appeal is whether the High Court erred in failing to consider the interests of the six appellants separately. (The sixth question.)
[22] After considering these issues, we shall refer to some miscellaneous
matters. These reflect questions raised, but do not
warrant separate or full
consideration.
Sufficiency of reasons
[23] As we have already indicated, it seems that Baragwanath J considered
the reasons were insufficient because of a lack
of specificity: at
[80]. In reality, however, the defect in the authority’s decision was
not a lack of reasons (such
as this court discussed in Lewis) but rather
the authority’s failure, as the judge saw it, adequately to address Mrs
Tuavao’s rights under s 9 of the
Bill of Rights. That is a quite
different proposition.
[24] We have no doubt that the authority did not breach its duty to give
reasons. The Taitos’ third ground of challenge
in the High Court should
have failed. It is clear that the authority must give reasons, but they do not
have to be lengthy. They
must be sufficient to tell the appellant why
his or her appeal has succeeded or failed. A useful articulation of the
requirements in this area is contained in Butler v Removal Review Authority
[1998] NZAR 409 at 420-421 (HC).
The right to be looked after by one’s family
[25] We now come to the second issue on this appeal. In order to
understand the point in issue, it is necessary to set out Baragwanath
J’s
reasoning in more detail than we have so far.
[26] The starting point is, of course, s 47(3) of the Immigration Act. His Honour’s thesis is that, in determining whether “there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand”, regard must be had to fundamental human rights, including (of particular relevance in this case) the right which Mrs Tuavao enjoys “not to be subjected to disproportionately severe treatment”. In determining the boundaries of that right, the State (and the courts on review) must have regard to arts 17 and 23 of the International Covenant on Civil and Political
Rights. Article 17 provides that “no one shall be subjected to
arbitrary or unlawful interference with his...family”
and art 23 provides
that “the family is the natural and fundamental group unit of society and
is entitled to protection by
society and the State”.
[27] These rights, taken together, give rise to a “minimum degree
of protection required by the law in a democratic society”:
at [72]. In
this case, that “minimum entitlement” translated to Mrs Tuavao
having the right to the assistance of family
members. Unless the State
can be satisfied that family members who are New Zealand residents can
look after Mrs Tuavao
adequately, then Mr Taito cannot be removed from New
Zealand.
[28] The Crown attacks this thesis. Is it right? We are satisfied, with
respect to the judge, that it is not right. The thesis
can be analysed in at
least two ways. First, one could take the end point – Mrs Tuavao’s
alleged right to be looked
after by a member of her family – to see
whether such a right has ever been recognised before. Such an analysis would
need
to explore the ramifications of recognising such a right. The alternative
approach is to begin at s 47(3) of the Immigration Act
and then work through the
steps in His Honour’s path of reasoning. We shall analyse the matter in
both ways.
The end point: has such a right been recognised
before?
[29] On the first approach, we concentrate on the end result of His
Honour’s reasoning, ignoring how His Honour reached
it. The focus here is
on whether such a right has ever been recognised in New Zealand or in overseas
jurisdictions before. Of course,
the fact that the right may not previously have
been recognised is not necessarily determinative, but the courts would obviously
be extremely cautious before acknowledging what would be a new right. The
courts would also need to be careful to consider the implications
of recognition
of a new right across other aspects of State activity.
[30] In that section of his judgment ([73]-[80]) where His
Honour identified
Mrs Tuavao’s right to an “assurance as to her security” and her entitlement to family
care, His Honour cited only two cases. They were R (Mahmood) v Secretary
of State for the Home Department [2001] 1 WLR 840 (CA) and Advic v United
Kingdom (1995) 20 EHRR CD 125.
[31] Mahmood does not support the right identified by Baragwanath
J, either directly or by inference or deductive reasoning. Mr Mahmood was an
illegal immigrant from Pakistan. Since his entry into the United Kingdom, he
had married a British citizen. The Secretary of State
for the Home Department
had served him with a notice directing him to remove himself from Britain. Mr
Mahmood applied for leave
to remain on the basis of his marriage. The Secretary
of State declined that application. Mr Mahmood applied for judicial review,
but
was unsuccessful both in the High Court and in the Court of Appeal. Mr Mahmood
based his claim on a right to family life.
[32] It is correct that, in the Court of Appeal, Laws LJ, with whom May
LJ agreed, was prepared to recognise as a fundamental
right or freedom
“the right of the parties to a genuine marriage to cohabit without any
undue interference”: at [19].
That is, in our view, a significantly
different right from that which Baragwanath J postulated in the present case.
The Court of
Appeal also turned its mind to art 8 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms, even
though at the
date at which the Secretary of State made his decision that convention had
not been incorporated into British
law. Article 8 of the European
Convention accords everyone “the right to respect for his private and
family life”,
a not dissimilar provision to art 17 of the International
Covenant on which Baragwanath J placed emphasis. The Court of Appeal held
that,
whether this matter was looked at in terms of the common law or art 8, there was
no breach of Mr Mahmood’s rights.
The Secretary of
State’s decision did not compel Mr Mahmood and his wife to live
apart. The Secretary of
State “was entitled to conclude that it would be
reasonable for her, and the children, to accompany him to Pakistan”:
at
[31].
[33] We also observe that there was no suggestion in Mahmood that Mr Mahmood’s expulsion would infringe Mrs Mahmood’s right under art 3 of the European Convention not to “be subjected to...inhuman or degrading treatment”, the
English equivalent of our s 9 of the Bill of Rights. We appreciate that an
answer to that may be that art 3 did not need discussion
because of the much
more appropriate art 8. The difficulty with that rejoinder, however, is that
our Bill of Rights does not expressly
recognise a right to family life at all,
still less a right to be cared for by one’s children in old
age.
[34] Advic is a decision of the European Commission of
Human Rights. Mr Advic had been refused re-entry into the United
Kingdom,
where he had previously lived. He said that the authorities’
refusal to allow his application for re-entry amounted to
a breach of his right,
under art 8 of the European Convention, to respect for his private and family
life. His complaint to the
European Commission was unsuccessful. While the
applicant had a number of relatives residing in the United Kingdom (a brother
and
adult children), there were not, the commission found, “sufficient
links between the applicant and his relatives residing
in the United
Kingdom to give the protection of Article 8 of the Convention”: at 126.
In our view, that case does not
provide support for the right
recognised in the High Court.
[35] If the courts were to recognise the postulated right, it would have profound implications for immigration law generally. If a vulnerable New Zealand citizen is entitled to family care if available, then it is hard to see why a non-resident family member willing to provide the necessary care should not be able to demand entry. There surely could not be one rule for those unlawfully here attempting to avoid removal and another for those seeking to come. It is after all the vulnerable New Zealand citizen’s rights which necessitate the caregiving relative’s presence in New Zealand. It would be quite wrong for the illegal overstayer to be able to steal a march on the willing foreign caregiver who is going through the appropriate immigration procedure before entering New Zealand in order to provide the necessary family care. The suggested right would therefore potentially drive a coach and four through Government immigration policy, and in particular through the family reunification policy, the criteria of which Baragwanath J accepted Mr Taito and his family did not meet: at [27].
[36] Further, the suggested right could potentially affect other
aspects of Government policy. For instance, if a vulnerable
New Zealander is
entitled to family care if available, would the State be obliged to provide that
New Zealander’s child wanting
to be the caregiver with an appropriate
social security benefit or unemployment benefit so that the assistance can be
provided?
The judge after all ruled that non-family State care would not meet
Mrs Tuavao’s “minimum degree of protection”.
[37] The postulated right also seems inconsistent with this court’s
decision in Patel v Removal Review Authority [2000] NZAR 200. In that
case, Mr Patel sought to avoid removal on the basis that Ramila Patel,
his sister-in-law, who had psychiatric
difficulties, depended on him.
The Removal Review Authority’s decision that Mrs Patel’s needs
and her relationship
with Mr Patel did not amount to “exceptional
circumstances” was upheld both in the High Court and in this court. There
was no suggestion that Mrs Patel had a right to family care. Of course, this
court recognised, as had the authority, that Mrs Patel’s
circumstances
were a factor to be considered when applying the “exceptional
circumstances” test. But then no one disputes
that in the present case
the authority did take into account Mrs Tuavao’s interests. The issue is
whether Baragwanath J was
right in saying that that is not enough and that the
authority must be satisfied that there is an adequate family care plan before
it
would be justified in authorising the Taito family’s removal.
[38] We are not convinced, therefore, that other authorities support the
specific right identified by the judge.
The judge’s reasoning path
[39] We accept, of course, that the fact that a specific right has not previously been recognised is not necessarily decisive: it merely points to a need for caution. So we shall now examine the judge’s reasoning path to see how he ended up where he did.
[40] The starting point is s 47 itself. In previous decisions of this
court, the words of s 47(3) have been allowed to speak
for themselves. For
instance, in Patel, this court described the test under the then
equivalent of s 47(3) in these terms (at 204):
The stringent statutory wording, “exceptional circumstances
of a humanitarian nature unjust or unduly harsh”,
using strong words
imposes a stern test. In its natural usage, “exceptional
circumstances” sets a high threshold necessarily
involving questions of
fact and degree. Associated in the test under the paragraph is that it be
“unjust or unduly harsh”
to remove on that account. It is a
composite test and the whole picture is to be viewed, both circumstances and
effects; and as
part of the whole picture, the effects on others as well as the
person removed may require consideration (Nikoo v Removal Review Authority
[1994] NZAR 509, 519).
[41] There is much to be said for keeping this area of law reasonably
simple, particularly given that it is effectively administered
by quasi-judicial
officers. In our view, the authority in the present case did follow
Patel; it did look at “the whole picture” and certainly did
consider the effect of the Taito family’s removal
on Mrs
Tuavao.
[42] We accept, however, that an interpretation of s 47(3) consistent
with the Bill of Rights is to be preferred: Bill of Rights,
s 6. We also accept
that the authority in the present case did not refer to s 9 of the Bill of
Rights when applying his mind to
s 47(3) and the facts of the case. Indeed, we
are prepared to infer that he did not even turn his mind to s 9. But that, in
our
view, was understandable. First, he was not referred to it. The authority
was entitled to assume that application of the words
in s 47(3) was sufficient
guide, in the light of appellate case law as to their meaning and as to the
approach required. Secondly,
as Mr Keith, for the Crown, stressed before us,
it is inevitable that the applicant will satisfy the s 47(3) test against
removal
long before s 9 becomes or needs to become engaged.
[43] This further point needs more elaboration. Section 9 has been the subject of authoritative interpretation in this court in Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510, an interpretation followed in this court in R v Leitch [1998] 1
NZLR 420 at 431, Zaoui v Attorney-General [2005] 1 NZLR 577 at [103]-[107] and [267], and Attorney-General v Taunoa CA82/04 8 December 2005 at [225(d)]. Mrs Puli’uvea was an illegal overstayer, like the Taitos. While she was in New Zealand, she had three more children, who were by virtue of their birth here
New Zealand citizens. When the Immigration Service tried to remove her, she
argued that this would cause severe psychological harm
of long-term standing to
her children, if they were to remain in New Zealand. The Removal Review
Authority found there were not
exceptional humanitarian circumstances, and
further appeals to the High Court and this court failed. It was argued in this
court
that the effect of the removal order, namely either the forcing apart of
the family or the children’s having to move to
Tonga, amounted to
“disproportionately severe treatment” for the purposes of s 9.
This court accepted that “the
carrying out of the order would cause
considerable distress, sadness, and difficulties for the family” (at 523).
But the court
went on:
But the action of removing Mrs Puli’uvea cannot be said to begin to
attain the high threshold required by the prohibition in
the New Zealand Bill of
Rights Act on disproportionately severe treatment. The cases here and
elsewhere expand on such constitutional
guarantees by using expressions such as
“treatment that is so excessive as to outrage standards of decency”
eg R v P (1993) 1 HRNZ 417, 423; 10 CRNZ 250, 255, referring to decisions
of the Supreme Court of Canada and the United States Supreme Court.
[44] So here, we are satisfied that, while undoubtedly the return of the
Taitos to Samoa will cause distress and sadness and difficulties
for them and
Mrs Tuavao, it does not “begin to attain the high threshold”
to trigger the s 9 protection.
Baragwanath J, while noting the
Puli’uvea test (at [55]), did not explain how it was that the
Puli’uveas did not “begin to attain the high threshold” but
Mrs Tuavao did. Puli’uvea cannot be distinguished on the basis that
the Puli’uveas were aliens but Mrs Tuavao was not. (Mrs Tuavao’s
status as
a New Zealand citizen is stressed at several points in His
Honour’s reasons for judgment: see, eg, at [52]-[54], [61]-[62],
[76], and
[80]. Baragwanath J appears to have distinguished the Puli’uvea
test on the basis that Mrs Puli’uvea was an alien: see [72].) The
Puli’uvea children were after all New Zealand citizens:
they to Mrs
Puli’uvea were the equivalent of Mrs Tuavao to the Taitos.
[45] In our view, therefore, the authority did not err in failing to
mention or consider s 9, as the circumstances of this case
did not trigger
it.
[46] In light of that finding, it is not necessary to trace Baragwanath J’s reasoning from s 9 to the specific right to care from family members. All we need say is that
we are not to be taken as accepting that the postulated right to family care
is an element of the rights conferred by art 17 of
the International Covenant.
Nor will every breach of art 17 rights automatically lead to a breach of s 9 of
our Bill of Rights.
It is to be noted after all that Parliament did not include
art 17 as part of our Bill of Rights in any direct way.
[47] We should add this. We do not dispute that our Bill of Rights
provides, like its European equivalent, a “minimum degree
of protection
required by the rule of law in a democratic society”: Anufrijeva v
Southwark London Borough Council [2003] EWCA Civ 1406; [2004] QB 1124 at [69] (CA), and cited by
Baragwanath J at [72]. But that mantra does not give the Removal Review
Authority or the courts licence
to provide such “protection”
as seems appropriate to a particular member of the authority or a
particular
judge. It was that mantra which in effect led Baragwanath J from s
147(3) and its test to s 9 of the Bill of Rights to art 17 of
the International
Covenant (and its European equivalent, art 8) to the specific right of the
vulnerable to be cared for by family
members, if available. With respect, we
doubt whether the concept of “minimum protection standard” adds
clarity to
this area of law. It certainly does not assist in a sensible
interpretation of s 47(3) of the Immigration Act.
Conclusion on the s 115A appeal
[48] We consider, therefore, that Baragwanath J erred in finding that the authority’s decision was defective because it had failed to consider Mrs Tuavao’s right to family care. Mrs Tuavao enjoys no such right. The authority did consider her position when applying the s 47(3) test and concluded that her needs could be met in other ways. The authority noted the number of other adult children Mrs Tuavao had living in Auckland and concluded that they could be reasonably expected to modify their living arrangements to support their elderly mother. That was a conclusion open to the authority. The authority was not bound to be satisfied as to how the family would achieve that. Indeed, given its powers and the way in which the authority is required to conduct appeals, it is difficult to see how the authority could completely satisfy itself on what the care arrangements would be. (The Removal Review Authority, unlike the Refugee Status Appeals Authority and
the Deportation Review Tribunal, does not have the powers of a commission of
enquiry: see Immigration Act, Schedule 3B, and
cf Schedule 3C, para 7
and Schedule 2, para 7.) Presumably though, some of those family members had
been assisting Mrs Tuavao
before the Taitos arrived in 2000; according to
medical reports before the authority, Mrs Tuavao’s medical complaints were
of long standing even before the Taitos’ arrival.
[49] As well, although the authority did not refer to this, it would
also have been entitled to take into account that the State
would provide
suitable medical and care assistance to Mrs Tuavao as a New Zealand citizen, if
her family were unable to do so.
The fact that such State care would be
available to Mrs Tuavao was not in dispute before us, or indeed before
Baragwanath J. His
Honour ruled it an irrelevant consideration because the
State cannot provide the love and devotion of a family. The State provides
much
better care for many elderly New Zealanders than their families do. But, in
any event, it is not correct that the State care
option was an option to be
“discarded” when considering Mrs Tuavao’s circumstances. It
was relevant as a back-up
should Mrs Tuavao’s children not be able to care
for her at some point in the future or should there be gaps in the care which
they were able to provide.
[50] There was no error in the way in which the authority approached its
task. It reached a conclusion which was clearly open
to it, and explained its
reasons cogently and with sufficient detail. The authority was entitled to find
that the Taitos’
removal did not meet the “stern test” the
wording of s 47(3) creates.
Failing to differentiate among the appellants
[51] The third main issue raised by the Crown was Baragwanath J’s
failure to consider separately the position of the five
appellants apart from Mr
Taito.
[52] There can be no dispute that Baragwanath J gave no separate consideration to the situation of Mr and Mrs Taito’s children. While undoubtedly they helped in the care of their grandmother, it certainly could not be said that Mrs Tuavao’s s 9 rights entitled her to six caregivers. Even if Mr Taito was to be the beneficiary of
Mrs Tuavao’s s 9 rights, that would not render it unjust or unduly
harsh for the children to be required to leave New Zealand,
particularly given
their ages (15 to 23 at the date of the authority’s decision). There are
numerous cases in the High Court
and this court where removal has been
sanctioned, notwithstanding the effect that such would have on other family
members, including
dependent minors who were New Zealand citizens. At the
very least, before allowing all the appeals, the High Court should
have considered their position as a separate issue, which would presumably have
turned on different
principles.
Miscellaneous matters
[53] The Crown raised a number of other issues, which do not require
separate consideration in light of its success on the primary
issue. We
mention here only some of the other issues, and then but briefly.
[54] First, the Crown was concerned that the application for
review was left undetermined. We do not accept that. The
judge concluded his
judgment, having allowed the appeal (at [81]):
No order is required on the application for review.
[55] What he meant by that was that the application for review was
dismissed; the appeal had given an appropriate remedy. His
Honour’s
conclusion in that regard was in accordance with case law: see, eg, Fraser v
Robertson [1991] 3 NZLR 257 at 260 (CA).
[56] There was nothing for the Crown to appeal. The Crown may not agree with the reasoning which led the judge to make no order, but the successful party cannot appeal the reasoning which led to the success: Amalgamated Builders Ltd v Nile Holdings Ltd [2000] NZCA 217; (2000) 14 PRNZ 652 (CA) and Caie v Attorney-General CA108/01
22 December 2005 at [6].
[57] Secondly, we decline to rule on the Crown’s complaint that the judge decided the case on a ground which had never been advanced. The Crown wins on its substantive complaint, regardless of whether the point was properly raised and
determined by the judge. The course of this appeal in the High Court was
rather unusual, with the crucial arguments (as the judge
saw them) being
addressed only after the decision had been reserved and on the prompting of the
judge. Such a course is unlikely
to be repeated – at least often –
with the consequence that a detailed trawl through the relevant statutory
provisions
and rules will be, not only irrelevant to the disposal of this
appeal, but also of limited value as a precedent. In addition, the
relevant
High Court Rules governing appeals to that court changed after the Taitos’
s 115A appeal was filed.
Result
[58] For the reasons given, the appeal on the s 115A proceeding is
allowed. The appeal on the judicial review proceeding is dismissed,
because it
had already been determined in the Crown’s favour. The decision of the
Removal Review Authority is restored and
confirmed.
[59] We reserve costs. If they cannot be agreed, memorandums can be
filed.
Solicitors:
Crown Law Office, Wellington, for Appellant
Otene & Lewis, Onehunga, Auckland for Respondents
NZLII:
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