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Court of Appeal of New Zealand |
Last Updated: 5 January 2012
IN THE COURT OF APPEAL OF NEW ZEALAND
CA244/07[2008] NZCA 462
BETWEEN MINISTER OF
IMMIGRATION
Appellant
AND ANAS IBRAHIM ALI AL HOSAN AKA ANAS
DEEB
First
Respondent
AND DEPORTATION REVIEW
TRIBUNAL
Second
Respondent
Hearing: 18 June 2008
Court: Glazebrook, O'Regan and Arnold JJ
Counsel: I C Carter and P G Scott for
Appellant
R P G
Haines QC and D J Ryken for Respondents
Judgment: 4 November 2008 at 11.30 am
|
JUDGMENT OF THE COURT
|
REASONS OF THE COURT
(Given by O’Regan J)
Table of Contents
Para No
Introduction [1]
Issues [2]
The appeal: s 22 issues [4]
Factual background [5]
Appeal to DRT [11]
High Court approach to s
22 [23]
Issues relating to
s 22 [27]
Section 22: Two
step inquiry: which step comes first? [28]
Did the DRT correctly apply s
22? [39]
Does a s 22
appellant have a burden of proof? [42]
Did the DRT have proper
regard to the interests of
Mr Al-Hosan’s family: s
22(6)(f)? [52]
Conclusion:
s 22 [67]
The appeal: other
issues [68]
Did the DRT
have proper regard to the evidence filed
after closing
submissions? [69]
Was the
position of Ms Aldayeh wrongly characterised
as “a matter of
choice”? [71]
Did the
High Court substitute its own view of the
merits for that of the
DRT? [72]
Should the High
Court have refused to grant a remedy
to Mr Al-Hosan? [74]
Should the matter have been
remitted to a differently
constituted DRT? [75]
Costs issues [76]
The cross-appeal [77]
Did the High Court properly
treat the matter as
an appeal? [78]
Should the High Court’s
decision not to award costs be
disturbed? [82]
Result [85]
Costs [86]
Introduction
[1] This is an appeal by the Minister of Immigration against a decision of the High Court in which it upheld Mr Al-Hosan’s application for judicial review of a decision of the Deportation Review Tribunal (DRT). The DRT had upheld a decision by the Minister to revoke Mr Al-Hosan’s residence permit. In the High Court, Harrison J found that the DRT had erred in law in dismissing Mr Al-Hosan’s appeal against the revocation of his residence permit. He quashed the decision of the DRT and remitted the matter to a differently constituted DRT for reconsideration: HC AK CIV 2006-404-003923 3 May 2007. The Minister appeals and Mr Al-Hosan cross-appeals against certain aspects of Harrison J’s decision.
Issues
[2] The principal issue on appeal is whether the DRT failed to correctly apply the relevant provisions of s 22 of the Immigration Act 1987 (the Act). The High Court Judge found that the DRT erred in its approach. He also made a number of other findings which are challenged by the Minister on appeal. Counsel provided us with an agreed list of issues to be determined on the appeal, and we will deal with those issues in the terms in which counsel expressed them. We will first address the issues relating to s 22 (identified at [27] below) then consider a number of subsidiary issues raised in relation to the appeal. These are listed at [68] below.
[3] There are two issues raised by the cross-appeal, relating to the Judge’s treatment of the judicial review application as if it were an appeal and his decision not to award costs in the High Court. We will deal with these after the appeal issues.
The appeal: s 22 issues
[4] In order to give some context to the issues relating to the proper approach to be taken by the DRT in s 22 appeals, it is necessary to first set out some of the background to the case, and the way in which the issues were considered in the DRT and in the High Court.
Factual background
[5] Mr Al-Hosan is a Saudi-Arabian born citizen of Jordan. He is married to Ms Sally Aldayeh, a Kuwaiti born citizen of Canada, who has been granted New Zealand citizenship. Mr Al-Hosan and Ms Aldayeh have two children: Serena, who was born in 2000 and Elyas, who was born in 2005. Both children were born in New Zealand and have New Zealand citizenship.
[6] Before arriving in New Zealand, Mr Al-Hosan frequently travelled from Jordan to the United States, originally to study and later to visit his family who had immigrated there. During a visit to the United States in 1993 Mr Al-Hosan was arrested and charged in Texas with supplying cocaine to an undercover police officer, receiving stolen property and tampering with vehicle identification numbers. Mr Al-Hosan agreed to a plea bargain, pleading nolo contendere and signing judicial confessions for six charges. Deferred adjudication orders were made by the Court, with the effect that Mr Al-Hosan was placed on probation for ten years and ordered to pay a fine.
[7] After a successful application from his mother, Mr Al-Hosan was granted a green card in 1996. This enabled him to legally live and reside in the United States. However in August 1998 the US Department of Justice, Immigration and Naturalisation Services commenced removal proceedings against him on the basis he had failed to declare his previous convictions. Mr Al-Hosan maintained that he had not been convicted but was the subject of “deferred adjudications”. After being released on bail Mr Al-Hosan returned to Jordan. In January 1999 an order for Mr Al-Hosan’s removal from the United States was made in absentia.
[8] Mr Al-Hosan and Ms Aldayeh, whom he had married in the United States in 1998, arrived in New Zealand in January 1999. Two months later Mr Al-Hosan filed an application for residency. He was required to declare whether he had ever been convicted or found guilty of any offence against the law in any country; placed on probation; charged with any offences against the law in any country; involved in the illicit drug trade; deported, excluded or removed from any country including New Zealand; or asked to leave any country including New Zealand. These questions were under a heading named ‘Character Requirements’. Mr Al-Hosan ticked ‘No’ in answer to all questions.
[9] In May 1999 Mr Al-Hosan was granted residence under the General Skills Category, based on his automotive engineering experience and qualifications. His wife was granted citizenship in August 2002. At about that time, the New Zealand Immigration Service discovered the situation relating to Mr Al-Hosan’s offending in the United States and the fact that he had been deported from the United States. He was charged with dealing with documents (his application for residency) with intent to defraud. He pleaded guilty and on 21 July 2003 was convicted and discharged. He was ordered to pay costs of $500.
[10] In October 2004, the Minister of Immigration issued a notice revoking Mr Al-Hosan’s residence permit. The revocation was based on ss 20(1)(b) and 20A(1)(b) of the Act, which empower the Minister to revoke permits procured by false or misleading representation or concealment of relevant information. The Minister relied on Mr Al-Hosan’s failure to declare events relating to the United States offences.
Appeal to DRT
[11] Mr Al-Hosan had two alternative rights of appeal against the Minister’s decision. The first was a right of appeal to the High Court on the merits under s 21 of the Act. On such an appeal, the High Court may quash the revocation of a residence permit if, in a case like the present case, it determines that the permit was not procured by a false or misleading representation or concealment of relevant information. The second is an appeal on humanitarian grounds to the DRT under s 22 of the Act. Mr Al-Hosan chose the latter. The DRT dismissed his appeal.
[12] The relevant provisions of s 22 are subs (4), (5) and (6), which provide as follows:
...
(4) Subject to subsection (5) of this section, on any appeal under this section the Tribunal may confirm or quash the revocation of the residence permit, as it thinks fit.
(5) The Tribunal shall not confirm the revocation of a residence permit under this section if it is satisfied that it would be unjust or unduly harsh for the appellant to lose the right to be in New Zealand indefinitely.
(6) In determining any appeal under this section, the Tribunal shall have regard to the following matters:
(a) The appellant's age:
(b) The length of time during which the appellant has been in New Zealand lawfully:
(c) The appellant's personal and domestic circumstances:
(d) The appellant's work record:
(e) The grounds on which the permit was revoked:
(f) The interests of the appellant's family:
(g) Such other matters as the Tribunal considers relevant.
...
[13] Despite the humanitarian focus of the appeal under s 22, Mr Al-Hosan challenged three factual elements of the Minister’s decision before the DRT. Much of the DRT’s decision is devoted to dealing with these challenges to the merits. Such matters would have been more aptly raised in a s 21 appeal. It seems that they were raised in relation to the factor specified in s 22(6)(e). But, while they were relevant in that context, the DRT was not surprisingly unimpressed with Mr Al-Hosan’s apparent attempt to minimise his past wrong-doing. While these factual issues loomed large in the DRT’s decision, the aspects of the DRT’s decision which are now relevant are those which deal with the application of s 22(4) and (5), and the DRT’s treatment of the factors to which it was required to have regard under s 22(6).
[14] The DRT approached its task under s 22 as a two stage process. It described the two stages as follows (at [13]):
(1) If the Tribunal finds that it would be unjust or unduly harsh for the Appellant to lose the right to be in New Zealand permanently, then the Tribunal must quash the Minister’s revocation;
(2) If the Tribunal does not so find, then it may exercise its residual discretion of whether to quash or confirm the revocation, having regard to the matters set out in s 22(6).
[15] This meant that the DRT considered the appeal on the basis that it first had to address s 22(5), and then, only if it did not find that it would be unjust or unduly harsh for Mr Al-Hosan to lose the right to be in New Zealand indefinitely, would it consider s 22(4). It described this latter provision as a “residual discretion”.
[16] The DRT addressed the s 22(6) factors when considering whether revocation would be unjust or unduly hard for the purposes of its determination under s 22(5). In brief terms, its analysis of those factors was as follows:
(a) It did not regard Mr Al-Hosan’s age (s 22(6)(a)) or the length of time that he had been in New Zealand (s 22(6)(b)) as compelling reasons on their own to allow his appeal, because it was feasible for him to return to Jordan where he had worked previously for almost ten years;
(b) It noted Mr Al-Hosan’s personal and domestic circumstances (s 22(6)(c)): his marriage to Ms Aldayeh, the fact that they had a daughter (with a second child then due to be born shortly), that they owned a house in Auckland with a net equity of about $350,000 and that he had savings and other assets of about $230,000;
(c) It considered Mr Al-Hosan’s work record (s 22(6)(d)), noting that he owned a small scale auto repair business with his brother which employs four people. This was seen as a small but successful business and Mr Al-Hosan was regarded as being a productive member of New Zealand society. The DRT considered that if he returned to Jordan he would find similar employment there;
(d) It focused on the grounds on which Mr Al-Hosan’s permit had been revoked (s 22(6)(e)). In brief terms, it rejected Mr Al-Hosan’s attempts to minimise his failure to disclose the United States offending, particularly his failure to mention that he had been charged with offences there (he argued he had not been convicted of the US offences which may have been technically correct, but it was unarguable that he had been charged). It was critical of Mr Al-Hosan’s evidence before it, describing his answers and occasional lack of recall as “not convincing”. It determined that it was satisfied that his omissions to disclose the United States offending were calculated to mislead and were not “guileless or excusable”;
(e) It rejected the contention that other matters (s 22(6)(g)) were relevant.
[17] That leaves the principal basis for the decision, namely the factor set out in s 22(6)(f), the interests of Mr Al-Hosan’s family. This issue was central to the DRT’s decision. It was also the focus of the High Court case and the appeal to this Court.
[18] In its analysis of this issue, the DRT:
(a) Noted the requirement to have regard to international conventions, particularly the entitlement of the family to protection by society and the state as the natural and fundamental group of society under art 23.1 of the International Covenant on Civil and Political Rights 1966 and the requirement under the United Nations Convention on the Rights of the Child 1989 to treat the best interests of the child as a primary consideration;
(b) Identified Mr Al-Hosan’s family in New Zealand as his wife, daughter and son. The son had been born shortly after the DRT’s hearing and was seven months old at the date of the DRT’s decision;
(c) Noted that Ms Aldayeh had completed optometry qualifications in New Zealand. Ms Aldayeh claimed she would be unable to continue optometry practice if required to return to Jordan, but she accepted in cross-examination that approximately 40% of the jobs in the health sector in Jordan are held by women. In addition, the DRT noted that she could possibly also reside in Canada;
(d) Criticised Ms Aldayeh’s evidence in support of Mr Al-Hosan’s appeal. The DRT said that while it did not find that she was complicit in his deception of the immigration authorities, it found “that she had turned a blind eye to these matters”;
(e) Found that the interests of the two very young children could not be separated from the interests of their mother and father upon whom they were totally dependent. However, the DRT noted that, although Serena had just started school, she had travelled widely and had the ability to adapt to new situations.
(f) Accepted that the interests of Mr Al-Hosan’s family were the most compelling factor in his favour;
(g) Expressed the view that the children were of an age where there would be no undue harshness or unjustness in their leaving New Zealand as part of a family unit.
[19] The DRT summarised the family issues as follows:
[54] In our assessment of all the factors requiring analysis under s. 22(6)(f), we accept the interests of Mr Al-Hosan’s family are the most compelling factor in his favour. The issue to weigh in this case is what hardship or injustice would ensue if Mr Al-Hosan’s residence were revoked. We accept that Ms Aldayeh has expressed a preference to remaining living in New Zealand and failing that, a preference to return to Canada. The evidence before us does not unequivocally state that Mr Al-Hosan cannot enter Canada. However it is accepted that he is now regarded as a “wanted felon” in the United States. We acknowledge that Ms Aldayeh is unwilling to return to live in Jordan for the reasons outlined earlier. We do note that she has returned to Jordan on a couple of occasions and spent time on holiday there. We regard Ms Aldayeh’s professional qualification as a positive factor in support of this appeal, which we weigh as part of the total balancing exercise.
[55] Counsel for Mr Al-Hosan implored the Tribunal to sympathetically consider Mrs Aldayeh’s plight to have to return to live as a woman in Muslim society. In this regard, the Respondent rejected that view giving evidence that life for women in Jordan is considerably less constrained than in the more conservative Arab states. We acknowledge that in the event that Mrs Aldayeh accompanies her husband back to Jordan, life would be considerably different than the one that she had enjoyed in New Zealand. Although there may be difficulty arising from Mr Al-Hosan’s residence being revoked and an adjustment period in settling in another country, we do not regard these difficulties as unduly harsh or unjust in the circumstances. Although they have a preference to continue to live in New Zealand, they are still able to live together as a family in Jordan. We are satisfied that Mr Al-Hosan would be able to obtain work there. It should also be noted that the evidence before the Tribunal was that his other brother, Ishmael is also subject to removal proceedings, which may also require him to return to Jordan. We have no further details and the outcome of his proceedings are not pivotal in any way to this decision. We acknowledge that life in Jordan will be different and conditions may be worse than what Mr Al-Hosan and Ms Aldayeh had become to enjoy in New Zealand. However it is a matter of choice whether Mrs Aldayeh wants to keep her family together in the event that Mr Al-Hosan’s residence is revoked. As we have noted above, we have found that the interests of the children are inextricably intertwined with the interests of their parents. Although any disintegration of a family unit would be unfortunate, that would not be the natural consequence of revocation, but rather of a decision by Mrs Aldayeh not to accompany her husband to Jordan.
[20] The DRT then weighed the significant public interest in the integrity of the immigration system and concluded that, given the nature of Mr Al-Hosan’s dishonesty in his immigration declaration, it was not unjust or unduly harsh for his permit to be revoked.
[21] Having resolved the s 22(5) issue in this way, the DRT then turned to what it described as its “residual discretion” under s 22(4). It dealt with this briefly, and did not refer back to the s 22(6) factors in doing so. It said that it placed weight on the Minister’s submission that there was a clear need to maintain the integrity of New Zealand’s immigration policies, procedures and laws to prevent persons obtaining residence by improper means. It cited an earlier DRT decision in which the DRT had expressed the view that if an immigrant was not prepared to be honest and open with the New Zealand authorities, he or she could not expect to enjoy the privilege of residence in New Zealand.
[22] The DRT therefore confirmed the revocation order and granted a temporary permit to Mr Al-Hosan for a six month period to allow him to sell his New Zealand property.
High Court approach to s 22
[23] Harrison J concluded that the DRT erred in two respects.
[24] The first error was that it misdirected itself as to the process to be undertaken under s 22 (the DRT’s direction in that regard is quoted at [14] above). Harrison J described the error in the following terms (at [42]):
This statement reverses the mandatory order of the two-stage process. By prematurely focussing the first stage of the inquiry on the concepts of ‘unjustness’ and ‘undue hardship’ the Tribunal immediately narrowed what is by definition a broad and virtually unfettered discretion and robbed the words ‘as it thinks fit’ of any practical meaning.
[25] The second error identified by Harrison J was that the DRT had held that the appellant bore the ultimate responsibility of satisfying the DRT on the balance of probabilities that it would be unjust or unduly harsh for him to lose the right to remain in New Zealand indefinitely. He said an appellant to the DRT under s 22 was not under a legal or evidential burden to satisfy the criterion of unjustness or undue hardship if his appeal is to succeed: this was because the DRT’s task was to undertake a de novo inquiry where there was no presumption in favour of the Minister’s decision.
[26] Harrison J described the correct process as follows at [45]:
In my judgment the proper approach to be followed by the Tribunal when exercising its discretionary power on ‘any appeal’ and forming its own view independently for the Minister is to ‘have regard to’ the seven mandatory factors. If, after undertaking that inquiry, the DRT concludes that the revocation should be quashed, it must allow the appeal. However, it is prohibited from reaching the alternative conclusion of confirming revocation if it is satisfied that the result would be ‘unjust or unduly harsh’. That criterion is broad and the necessary inquiry will be informed by but not restricted to the seven mandatory factors. In this respect, in contrast to the Tribunal’s appeal powers on deportation appeals under ss 104 and 105, s 22 does not link the criterion of ‘unjust or unduly harsh’ to the seven mandatory factors (under s 105(2)).
Issues relating to s 22
[27] We now set out the issues which counsel identified in relation to s 22. They are:
(a) Does s 22 of the Act contemplate a two step inquiry by the DRT:
(i) whether it is satisfied that it would be unjust or unduly harsh for the appellant to lose the right to be in New Zealand indefinitely, as it would then be under a mandatory obligation to quash revocation, but if not, to
(ii) then exercise the more general discretion, which it described as a “residual” discretion?
(b) If not, does s 22 require the DRT to:
(i) firstly exercise a general discretion (“may confirm or quash the revocation ... as it thinks fit” – s 22(4)), and then
(ii) secondly, consider whether or not it is prohibited from confirming revocation “if it is satisfied that it would be unjust or unduly harsh” (s 22(5)) for the first respondent to lose the right to be in New Zealand indefinitely.
(c) Whatever the answer to (a) and (b), did the DRT, in substance, correctly apply s 22 in the circumstances of this case?
- (d) Is a s 22 appellant to the DRT under a legal or evidential burden to satisfy the DRT that it would be unjust or unduly harsh for the appellant to lose the right to be in New Zealand indefinitely?
- (e) In respect of Mr Al-Hosan’s wife and children, did the DRT have proper and genuine regard to the interests of Mr Al-Hosan’s family under s 22(6)(f)?
Section 22: Two step inquiry: which step comes first?
[28] We will consider issues (a) and (b) together, because the answer to one provides an effective answer to the other. The DRT’s approach to s 22 was to deal with s 22(5) first, and then, if that did not resolve the issue, to deal with s 22(4) as a residual matter. Harrison J said that this reversed the appropriate order, and that it was “mandatory” to consider the “virtually unfettered discretion” in s 22(4) first, and then deal with s 22(5) only if the decision under s 22(4) was to uphold the revocation, so that the unjust/undue hardship criterion in s 22(5) had to be applied.
[29] On behalf of the Minister, Mr Carter argued that the DRT’s approach was right. He said that, although s 22(4) comes before s 22(5), the former is subject to the latter. He submitted that this meant that the effect of s 22(5) was that, before the DRT could confirm revocation under s 22(4), it had to determine whether it was satisfied that the confirmation would be unjust or unduly harsh. If it decided that confirmation would be unjust or unduly harsh, then that would be the end of the matter. He said that the order proposed by the High Court Judge was “neither logical, efficient nor consistent with general principle”. It was, he said, a waste of the limited resources of the DRT to embark on the broader s 22(4) evaluation when that may in many cases be unnecessary because of a favourable outcome under s 22(5).
[30] Mr Carter also argued that the use of the term “residual discretion” by the DRT when referring to its s 22(4) decision was not an indication that the DRT was narrowing the scope of its task under s 22(4), as Harrison J thought. Rather, he said that the term “residual” was used by the DRT simply in the sense of “something that remains to be done after completing a prior step”. He said that the term “residual” appeared to have been adopted by the DRT from a High Court decision, Mil Mohamed Mohamud v Minister of Immigration [1997] NZAR 223 at 227. He cited to us a number of High Court authorities in which High Court Judges had commented on the DRT’s approach of dealing with the s 22(5) issue before the s 22(4) issue (and the description of the s 22(4) evaluation as “residual”) without criticism. He acknowledged however, that Miller J in Minister of Immigration v Vilceanu HC WN CIV 2007-485-377 11 December 2007 was critical of the DRT’s approach, saying that it robbed the words “as it thinks fit” in s 22(4) of practical meaning.
[31] In the alternative Mr Carter argued that it did not matter in which order ss 22(4) and 22(5) were applied, and that the DRT had, in this case, properly dealt with both subsections.
[32] Counsel for Mr Al-Hosan, Mr Haines QC, said that the point made by Harrison J was not as to the order of the inquiry under s 22, but about understanding the nature of the power exercised by the DRT. We find that hard to reconcile with Harrison J’s reference to “the mandatory order of the two stage process” (at [40] of his judgment, quoted at [24] above). But we agree with Mr Haines that the underlying concern of Harrison J was that the DRT had not properly addressed the s 22(4) test, and had approached the case on the basis that, once it had determined that the “unduly harsh” criterion in s 22(5) was not met, then it followed almost inexorably that Mr Al-Hosan could not succeed on the s 22(4) test either.
[33] In our view, the order in which the DRT approaches its alternative tasks under s 22(4) and s 22(5) is not a matter of great consequence. What is important is that the DRT addresses each task properly. We agree with Harrison J that the way the DRT articulated the two stage approach in this case, by reference to its earlier decision in Aiolupotea v Minister of Immigration [1994] NZDRT 5; [1994] NZAR 452 (reproduced at [14] above) carries the risk that the DRT may downplay the s 22(4) task inappropriately. We accept Mr Carter’s submission that the term “residual” does not of itself, denote a downplaying of the s 22(4) evaluation, and that it would be possible to apply the test in Aiolupotea v Minister of Immigration and still perform the s 22(4) evaluation properly. But we are unable to conclude, on the basis of what the DRT said in its decision, that the DRT did, in fact, adequately address the s 22(4) evaluation in the present case.
[34] Mr Haines referred us to the first decision of the DRT under s 22, Vake v Minister of Immigration (1989) 7 NZAR 500 at 502, in which the DRT articulated its task in terms which recognised the significance of s 22(4). The DRT said:
Under s 22(4), however, the Tribunal has a very broad discretion. There are no jurisdictional prerequisites. The only fetter on the Tribunal’s discretion is that contained in s 22(5) which prohibits the Tribunal from confirming a revocation if it is satisfied that it would be unjust or unduly harsh for the appellant to lose an indefinite right of abode in New Zealand.
[35] We agree that that formulation recognises more appropriately the nature of the s 22(4) evaluation than that set out in Aiolupotea v Minister of Immigration.
[36] We conclude on issues (a) and (b) that there is no mandatory order for consideration of the discretions under ss 22(4) and (5), and that the DRT is free to deal with them in any order it considers to be appropriate. But they are two different tasks and each must be addressed properly, unless the decision on the first one which is considered renders consideration of the other unnecessary. In both cases the criteria set out in s 22(6) must be evaluated, and while that does not necessitate the repetition of the DRT’s views on each one at length, it does require proper evaluation of those factors in relation to each decision.
[37] Harrison J described the discretion under s 22(4) as: “broad and virtually unfettered”. Mr Carter took issue with that description. We do not think Harrison J was suggesting that the DRT could make its decision under s 22(4) on any basis whatsoever. It is, of course, required to make its evaluation in terms of the Act and, in particular, by appropriately balancing the matters set out in s 22(6). However, we agree with Harrison J that the required evaluation is broad and that the factors to be taken into account are not necessarily limited to those set out in s 22(6), though in many cases those factors will be the only relevant factors. Section 22(6)(g) specifically brings other relevant matters into play in the DRT’s decision-making.
[38] As Harrison J noted at [45], and as the DRT itself noted in Vake v Minister of Immigration, the s 22(4) test is not linked to the “unduly harsh” criterion in s 22(5). It is notable that under s 105(1) the DRT may quash a deportation order “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”. That unitary test contrasts with the rather awkward formulation in s 22, which creates two separate tests which overlap to some extent and which require consideration of the same factors, without any guidance as to how to approach the different tasks. But we emphasise that they are two separate tasks.
Did the DRT correctly apply s 22?
[39] As is apparent from our discussion of the previous issues, we conclude that the answer to this question is “no”.
[40] The DRT undertook a full evaluation of the s 22(6) criteria in relation to the s 22(5) determination, but it is not clear from its decision that it also properly evaluated those factors when it came to s 22(4). In its very brief discussion of the s 22(4) test, it simply emphasised the importance of the need to maintain the integrity of New Zealand’s immigration policies, procedures and laws to prevent persons obtaining residence by improper means. That is, of course, a relevant factor, but it needs to be considered alongside the factors in s 22(6), all of which need to be weighed up in the overall evaluative exercise.
[41] Mr Carter argued that the consideration of the s 22(6) factors in the DRT’s decision applied to both s 22(5) and s 22(4), but there is nothing in the DRT’s decision that indicates that that was the case. We agree with the comment made by Harrison J (at [65](6) of his judgment) in that regard. If the DRT had made it clear when it came to the s 22(4) exercise that it was applying its earlier analysis of the s 22(6) factors to its s 22(4) evaluation, and outlined why its conclusions on those factors led it to decline to find in Mr Al-Hosan’s favour under s 22(4), we would have accepted Mr Carter’s submission. But on a fair reading of the DRT’s decision, it simply did not do this.
Does a s 22 appellant have a burden of proof?
[42] As noted earlier Harrison J considered that the DRT erred when it held that the appellant was under a burden of proof. The DRT had said at [14]:
On an appeal, an appellant bears the ultimate responsibility of satisfying the Tribunal on the balance of probabilities that it would be unjust or unduly harsh for him or her to lose the right to remain in New Zealand indefinitely....
[43] The High Court Judge said the appellant was not under a legal or evidential burden to satisfy the criterion of unjustness or undue hardship if the appeal is to succeed, because the DRT procedure is a de novo inquiry and there is no presumption in favour of the Minister’s decision. He cited with approval the following observation of Panckhurst J in Faatafa v Minister of Immigration HC CHCH CIV 2005-409-1494 17 October 2005 at [49]:
The Tribunal must be ‘satisfied’ as to the existence of unjustness or undue harshness. Although taken from a different context I think the observations of Court of Appeal in R v Leitch [1998] 1 NZLR 420, in considering the need to be satisfied in the context of the imposition of a sentence of preventive detention, are equally apt in the present context. At 428 the Court observed:
The need to be ‘satisfied’ calls for the exercise of judgment by the (decision-maker). It is inapt to import notions of the burden of proof and of setting particular standards e.g. beyond reasonable doubt.
[44] We heard extensive argument about this topic and were referred to numerous cases where slightly different variations on the manner of expression was said to lead to different results. As a starting point, we endorse the comment of Fisher J in Faavae v Minister of Immigration HC AK M1434/96 9 May 1997 (Faavae No 2) where he noted the different approaches to the onus of proof and expressed the view that the appellant carried the risk that if he or she could not produce or point to the evidence necessary to satisfy the DRT of the criteria necessary to allow its appeal, the appellant would lose. He suggested that this could be called “onus of proof”, but that others preferred different terminology. He added:
But in the event one should not waste too much energy upon labels. Everybody agrees that unless and until sufficient evidence is advanced before the Tribunal to satisfy it as to the conditions required for a successful appeal under s 105 the appeal will fail. So wherever the requisite evidence came from, the burden of persuasion in the end plainly rested with this appellant.
[45] Faavae No 2 was a s 105 case, and as noted at [39] above, the test under that section is in different terms from s 22. In particular, the jurisdiction to quash a deportation order may be exercised by the DRT only if it is satisfied that it would be unjust or unduly harsh to deport the appellant and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand. The “satisfied” formulation is echoed in s 22(5), but s 22(4) is expressed in a much more open-textured way, allowing the DRT to confirm or quash the revocation of a residence permit, as it sees fit.
[46] Mr Haines said that it would be a mistake for the DRT to see its jurisdiction as being analogous with ordinary civil litigation, where a plaintiff bears the burden of proof and, if matters are inconclusive, the defendant wins on the basis that that burden has not been discharged. He emphasised that cl 7 of Schedule 2 to the Act provides that the DRT is a Commission of Inquiry under the Commissions of Inquiry Act 1908, which makes it unique in the immigration context. The Refugee Status Appeals Authority (RSAA) has the powers of a Commission of Inquiry (cl 7 of Schedule 3C to the Act) but is not actually a Commission of Inquiry, and neither the Residence Review Board nor the Removal Review Authority is a Commission of Inquiry or has the powers of a Commission of Inquiry.
[47] Mr Haines argued that the subject matter addressed by the DRT (humanitarian circumstances and international human rights obligations) of themselves required an inquisitorial approach to the investigation of the facts, as opposed to the standard contest between adversaries as seen in civil and criminal courts. He said the fact that the DRT was a Commission of Inquiry emphasised that approach. Notwithstanding that, however, he accepted that there was a responsibility on an appellant to establish that the DRT should quash a revocation in terms of s 22(4) and/or (5). He accepted the statement of the law set out by Fisher J in Faavae No 2, reproduced at [44] above.
[48] We accept that there will be exceptional cases where the DRT considers that it needs more information than that provided by the parties in order to undertake the evaluation required under s 22. In those cases it may seek further information from the parties or obtain the information itself and provide an opportunity for counsel for the parties to comment on it. An example of the DRT having done this is the decision of the DRT which was under appeal in Hu v Minister of Immigration HC WN CIV 2007-485-1832 15 May 2008. Nothing we have said about the responsibility of an appellant to put before the DRT the information required to make his or her case is intended to limit the DRT’s power to obtain further information or to discourage the DRT from using that power.
[49] We endorse the comment of Fisher J in Faavae No 2 about labels. While we accept Mr Haines’ submission that the DRT should not approach its task as a court approaches a civil dispute, it must be remembered that the procedure of the DRT has many of the hallmarks of civil litigation, including the leading of evidence and the cross-examining of witnesses. While the DRT has the power of a Commission of Inquiry to call for further information or make its own inquiries, it has limited resources and in the normal run of cases, can rightly expect that an appellant will make his or her case by putting before the DRT information which, if accepted, would lead the DRT to quash the revocation.
[50] Like Harrison J, we have reservations about the DRT’s statement at 14 of its decision that:
An appellant bears the ultimate responsibility of satisfying the Tribunal on the balance of probabilities that it would be unjust or unduly harsh for him or her to lose the right to remain in New Zealand indefinitely.
[51] Our concern is broader than that of Harrison J, however. He saw this as legally wrong, because the appellant was not under any legal or evidential burden to satisfy the criterion of unjustness or undue hardship. For reasons we have given, we agree there is no “burden” in a formal sense, though, unlike Harrison J, we believe an appellant has a responsibility to place before the DRT material which, if accepted, would allow the DRT to exercise its power under s 22 of the Act to quash the revocation. But our greater concern is that the test appears to assume that the DRT is embarking exclusively on the s 22(5) exercise, without recognising that the DRT has an equally important and much more open-textured discretion under s 22(4).
Did the DRT have proper regard to the interests of Mr Al-Hosan’s family: s 22(6)(f)?
[52] We have summarised the DRT’s treatment of the factors set out in s 22(6)(f) at [18] - [20] above.
[53] The major criticism made by Mr Haines of the DRT was that it had failed to address the rights of Ms Aldayeh and the children as New Zealand citizens. He said the DRT was required to give “genuine and not merely token or superficial regard” to this factor, to use the formulation adopted by Randerson J in Kumar v Minister of Immigration HC AK M184/99 25 March 1999. He said that, in this case, the DRT’s consideration was superficial only.
[54] Mr Carter said that, in the case of Ms Aldayeh, her citizenship was based on Mr Al-Hosan’s deception and was itself flawed, but that was strongly disputed by Mr Haines. The DRT itself did not proceed on this basis, and treated Ms Aldayeh as a citizen without any such qualification. We understand that the Minister has not taken steps to revoke her citizenship, so the DRT’s approach was correct.
[55] Mr Haines contrasted the rights enjoyed by New Zealand citizens with a bleak description of those available to residents of Jordan, which he said had not been adequately recognised by the DRT. At the hearing, we queried whether this submission relied on an assessment of Jordan in terms of western values, rather than universal rights. Mr Haines assured us it was the latter, and we do not need to take the point further. We do, however, emphasise the need for the analysis to focus on universal rights when a comparison of the rights available to New Zealand citizens with those available to citizens of another country is being undertaken.
[56] More particularly, Mr Haines said that the DRT had failed to consider the interests of the children. He referred to Article 23 of the International Covenant on Civil and Political Rights and the requirement in the Convention on the Rights of the Child to give primary consideration to the best interests of the child. He was particularly critical of the comment that the interests of the very young children could not be separated from the interests of their mother and father, and the comment by the DRT that any disintegration of the family unit would be unfortunate, but would not be the natural consequence of revocation but rather of a decision by Ms Aldayeh not to accompany her husband to Jordan.
[57] Mr Haines said the DRT’s decision was characterised by assertions and conclusory statements, as well as incorrect statements of law. He contrasted its approach with that of the RSAA which he said provides clear and succinct reasons for its decisions. He described the DRT as “trundling along using a tired precedent and not thinking about what it has to do”. This was strongly contested by Mr Carter.
[58] We do not consider that it was unfair of the DRT to see the interests of the children being closely tied to those of their parents, given that both Ms Aldayeh and the children have New Zealand citizenship and, therefore, the right to remain in New Zealand. We accept that the consideration of the future health and education of children do require separate consideration. However, the submissions made to the DRT on Mr Al-Hosan’s behalf did not deal in any detail with the position of Serena and Elyas was not born at the time of the hearing so it is not surprising that the DRT did not devote a lot of its decision to their positions as distinct from the family as a whole. Mr Haines accepted that there could be no criticism of the DRT for not considering the interests of Elyas separately from those of the family as a whole.
[59] The DRT had limited information on the likely living conditions (health, education and the like) for the children in Jordan, apart from generic information which may or may not have been applicable to the children. We do not think it is fair to criticise the DRT for giving little weight to unprocessed generic country information which is not directed to the circumstances of the parties or children whose interests are under consideration. To give a neutral example (not taken from this case), there is little point in telling the DRT that only 30 per cent of children in a country participate in the education system without some indication of whether the children whose interests are under consideration would come within the 30 per cent who do or the 70 per cent who do not. We do not accept Mr Haines’ submission that counsel for s 22 appellants can simply expect the DRT to evaluate the particular interests of an appellant’s children without the matter being raised by counsel and supporting information related to the particular child being provided.
[60] In the present case there appeared to be three possible outcomes for the family if Mr Al-Hosan’s permit was revoked. These were:
(a) Ms Aldayeh and the children accompanied Mr Al-Hosan to Jordan;
(b) Ms Aldayeh and the children went to Canada. Whether Mr Al-Hosan would be permitted to join them there was obviously problematic and not able to be resolved by the DRT;
(c) Mr Al-Hosan returned to Jordan, and Ms Aldayeh and the children remained in New Zealand, thus splitting the family.
[61] The DRT appears to have virtually ruled out the Canada option, which may well have been because there was little information available to it at the hearing, particularly as to whether Mr Al-Hosan would be permitted to enter and stay in Canada (it seems clear that Ms Aldayeh and the children will be permitted to do so). However there may be further information available about this when the matter comes to be reheard.
[62] As to the remaining two options, the task of the DRT was to evaluate each of these against the outcome which was sought by Mr Al-Hosan, namely that the revocation be cancelled and that the family be allowed to remain together in New Zealand. While Ms Aldayeh will have a choice as to whether she and the children return to Jordan with Mr Al-Hosan or remain apart from him in New Zealand, it is something of a Hobson’s choice because she is required to choose between two unattractive options for her and the children. The important point for the DRT is that she has to confront those two options because the outcome which is obviously the optimal one from the point of view of her and her children, namely the family remaining together in New Zealand, will be foreclosed if the revocation is not quashed by the DRT. We agree with Mr Haines that the fact that two unattractive options are available does not diminish their unattractiveness and the DRT was required to consider the impact of both of those options on the family and, to the extent their interests differ from the rest of the family, Serena and Elyas.
[63] It is obvious that the assessment will lead to a conclusion that there is real detriment for Ms Aldayeh and for each of the children if Mr Al-Hosan’s permit remains revoked (unless perhaps it transpires that the whole family including Mr Al-Hosan will be allowed into Canada). But that is not the end of the matter. Rather, what must follow is an evaluation of that detriment against the importance to New Zealand of the integrity of its immigration system being maintained, after proper evaluation of the other factors set out in s 22(6).
[64] We found the description of the task to be performed given by Baroness Hale in Naidike v Attorney-General of Trinidad and Tobago [2005] 1 AC 538 (PC) very helpful. Having emphasised at [68] the importance that the rights and interests of children are taken seriously by parties to the Convention on the Rights of the Child, she pointed to the substantial body of case law under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms dealing with the conflict between the right of the State to exclude or deport non-citizens and the right to respect for family life with citizen family members who have the right to remain. She described the task of the decision-maker in these circumstances in these terms (at [75]):
The decision-maker has to balance the reason for the expulsion against the impact upon the other family members, including any alternative means of preserving family ties. The reason for deporting may be comparatively weak, while the impact on the rest of the family, either of being left behind or of being forced to leave their own country, may be severe. On the other hand, the reason for deporting may be very strong or it may be entirely reasonable to expect the other family members to leave with the person deported.
[65] We respectfully adopt that description. In the s 22 context references to “deporting” need to be read as “revocation of the residence permit”.
[66] In our view the DRT did, in broad terms, undertake that balancing exercise in the present case when it addressed its attention to the s 22(5) evaluation. The weight it gives to particular factors is not normally the concern of a Court engaged in judicial review or in an appeal on a question of law. In its reconsideration, the DRT will presumably have more information about the Canada option and more focussed information about the likely impact on the children of a return of the whole family to Jordan. That will allow for it to undertake the balancing task on a better informed basis than was the case in its initial hearing.
Conclusion: s 22
[67] We conclude that the DRT did not correctly apply the tests set out in s 22 in this case. The Minister’s appeal therefore fails.
The appeal: other issues
[68] We heard argument on a number of other issues and we propose to set out our views on them, even though some of them are not issues that are essential to our consideration of the appeal. At least some of them may be relevant to the DRT’s reconsideration of Mr Al-Hosan’s appeal. Those issues are:
(a) Did the DRT have proper and genuine regard to the evidence referred to in Mr Al-Hosan’s closing submissions to the DRT and filed under cover of a letter dated 17 November 2005 from his solicitors?
(b) Was the position of Mr Al-Hosan’s wife wrongly characterised by the DRT as “a matter of choice”?
(c) Did the High Court in an application for judicial review effectively substitute its own view of the merits for that of the DRT?
(d) In the event the DRT made an error of law, should the:
(i) discretion as to remedy be exercised to decline to grant a remedy to Mr Al-Hosan?
(ii) section 22 appeal have been remitted to a differently constituted DRT?
(e) If the appeal is allowed, should there be an order for costs in favour of the Minister?
(f) If the appeal is dismissed, should there be no order for costs in favour of Mr Al-Hosan?
Did the DRT have proper regard to the evidence filed after closing submissions?
[69] The day following the DRT hearing, Mr Al-Hosan’s then counsel (not Mr Haines) filed further evidence consisting to two academic articles on the position of women in Jordanian society. Mr Haines criticised the DRT because it did not have proper regard to this evidence. It was not referred to or acknowledged in the DRT’s decision. He said that the evidence contextualised Ms Aldayeh’s objections to living in Jordan and the value of New Zealand citizenship, language, social and employment issues in relation to Ms Aldayeh.
[70] As the matter is to be reheard, any relevant material can be addressed by the DRT in its reconsideration. However, we observe that the DRT is not obliged to mention every article to which it is referred by counsel in its decision, and that, while context is important, evidence which is focussed on the position of the party whose interests are being considered by the DRT is of much greater utility to the DRT in making its decision that generalised articles which are not focused on the facts of the case. We also observe that a decision-making body like the DRT is not assisted by information being provided after the conclusion of the hearing, rather than in advance, so the DRT can read it in advance and counsel for the Minister can comment on it.
Was the position of Ms Aldayeh wrongly characterised as “a matter of choice”?
[71] We have dealt with this earlier: see [62] above.
Did the High Court substitute its own view of the merits for that of the DRT?
[72] Counsel for the Minister argued that Harrison J had substituted his views on the merits for those of the DRT. We disagree. In our view the Judge dealt with the case in terms of proper principles of statutory interpretation and found, correctly, that the DRT erred in the way that it had interpreted s 22 and applied it to the facts of the case. He did express a view on some factual matters that would not normally be considered as important or even relevant in judicial review proceedings, but we do not think that deflected him from dealing appropriately with the alleged errors of law that were the real focus of his decision.
[73] However, there were some expressions of views by Harrison J on a number of issues which Mr Haines indicated he would seek to rely on when the case was re-argued in front of the DRT. In those circumstances, it is appropriate that we record our views on these. They are:
(a) Harrison J referred to s 22(4) providing for a “virtually unfettered” discretion. We have commented on this at [37] above;
(b) Harrison J observed that New Zealand had a duty to Mr Al-Hosan’s children as citizens. As we have commented earlier, we see the position of the children as citizens of New Zealand as very important matters which must be treated as a primary consideration. But we do not see them as trump cards. Rather, they must be given appropriate weight in the balancing exercise described at [64] above. The position that a s 22 appellant starts from is that he or she has done or omitted to do something that calls into question the integrity of New Zealand’s immigration laws. The gravity of the breach will vary from case to case. In that context the interests of the children will be a matter of importance, but those interests may be outweighed by the need to control the border and provide a disincentive for dishonest actions on the part of immigration applicants;
(c) Harrison J commented that the offending of Mr Al-Hosan was “not serious offending in the overall scale”. We see that assessment as being a matter for the DRT rather than the Court on review. It does not seem to us to be unreasonable to regard dealing in stolen property and what would be classified in New Zealand as a class A drug as serious offending. It may be that Harrison J meant that the level of drug dealing in this case was not at the high end, and we agree that is so. But it could still reasonably be seen as a serious matter and of course, Mr Al-Hosan lied about it to the New Zealand authorities.
Should the High Court have refused to grant a remedy to Mr Al-Hosan?
[74] Mr Carter argued that the High Court should have declined to grant a remedy to Mr Al-Hosan, even if it found that the DRT had erred. We disagree. It seems to us to be clear that where a decision is made in circumstances where the DRT has not correctly applied the statutory test, it is not realistic to expect the High Court to decline to grant the remedy of quashing the decision and ordering that the exercise be undertaken properly.
Should the matter have been remitted to a differently constituted DRT?
[75] Mr Carter said that the Judge was wrong to direct that the matter be remitted to a differently constituted DRT. He said there was no pleaded allegation or submission to suggest bias or predetermination on the part of the DRT which made the initial decision, and Mr Al-Hosan had not asked the Judge to remit the matter to a differently constituted DRT. In his oral argument, Mr Carter pointed out that this matter may have become academic because the case will come before a differently constituted DRT anyway, due to unavailability of some of the members of the DRT who were involved in Mr Al-Hosan’s appeal. We agree in general terms with Mr Carter that, unless there is a particular reason for the matter to be considered by DRT members other than those involved in the initial decision, the allocation of the membership of the DRT to any matter before it should be made by the DRT itself. We therefore allow the appeal to that extent and remit the matter to the DRT with no requirement that it be considered by a differently constituted DRT.
Costs issues
[76] There were two issues raised in relation to costs in this Court. The first was whether a costs order should be made in favour of the Minister if the appeal was allowed. As it has been dismissed in all but one minor respect, we do not need to answer this. The second was whether no costs order should be made in favour of Mr Al-Hosan if his appeal was successful. We will deal with that after we have disposed of the cross-appeal.
The cross-appeal
[77] Only two issues in relation to the cross-appeal now remain for consideration. These are:
(a) Did the High Court properly treat the proceedings as an appeal on a question of law under s 117 of the Act rather than as an application for judicial review?
(b) Should the High Court’s exercise of discretion not to order costs in the High Court be disturbed?
Did the High Court properly treat the matter as an appeal?
[78] Mr Al-Hosan could have appealed against the decision of the DRT to the High Court. Section 117 provides for that right of appeal, which is limited to questions of law. Section 117(6) provides that the decision of the High Court on any such appeal is final.
[79] Mr Al-Hosan chose not to appeal, but rather to commence judicial review proceedings in the High Court. Harrison J noted that the core of Mr Al-Hosan’s argument was that the DRT had erred in law, and that if that was correct, and the error was material, the result would be the same whether the proceeding as treated as an appeal or as an application for judicial review: at [38]. He noted that the proceeding had been filed within the time prescribed for lodging an appeal, and he therefore said he proposed to determine Mr Al-Hosan’s application as an appeal on questions of law.
[80] Mr Haines said the Judge was wrong to take this approach. However, nothing turns on this because, as the Judge correctly said, the issues before him could have been dealt with equally effectively in an appeal or a judicial review application. If Mr Al-Hosan had appealed to the High Court, rather than commencing judicial review proceedings, the decision of Harrison J would have been final, but neither party in this Court suggested that there was any question that Harrison J’s approach meant that his decision became final in this case. The legislation contemplates both appeals on questions of law and judicial review proceedings, and we do not see any need to restrict the parties’ choice as to which is sought in particular cases. In some cases both are sought: see for example Faavae No 2 and, on appeal, Faavae v Minister of Immigration [2000] NZAR 177. In Vilceanu, Miller J was critical of the Minister of Immigration for appealing and seeking to judicially review the same decision: at [54]. Although the Minister’s appeal succeeded, and the grounds for judicial review were made out, Miller J declined any relief under the judicial review application: at [55].
[81] In circumstances where the Act provides disappointed parties in DRT proceedings with alternatives of appeal or judicial review, we do not see any need for the Court to interfere with the parties’ choice. As Mr Al-Hosan succeeded in the High Court and obtained the remedy he sought, we can see no point in his cross-appeal on this aspect of the case.
Should the High Court’s decision not to award costs be disturbed?
[82] Harrison J made no order for costs in the High Court, but did not give reasons for his decision not to do so. It seems likely that this was at least in part because Mr Al-Hosan’s unlawful conduct had led to the revocation of his residence permit, and partly because of the apparently misguided way his appeal was conducted in the DRT (see [13] above). Mr Carter suggested that it may have been because many matters were raised in the High Court on Mr Al-Hosan’s behalf that had not been part of his case in the DRT.
[83] Mr Haines argued that, notwithstanding the criticisms which could be made of Mr Al-Hosan, the primary focus of the Court in determining costs should be on the conduct of the decision-maker whose decision has been successfully challenged on judicial review. As Mr Al-Hosan established that the DRT had erred in law, it was appropriate that he should be awarded costs as the successful party, following the normal situation contemplated by r 47(a) of the High Court Rules.
[84] This Court is normally reluctant to interfere with costs decisions, but in the present case the reasoning of the Judge has not been articulated and it is necessary for us to deal with the matter anew. We accept Mr Haines’ point that, although Mr Al-Hosan’s conduct has been reprehensible and the conduct of his case in the DRT may have been misdirected, the decision on costs should focus on the position of the parties to the litigation. In this case Mr Al-Hosan succeeded in the High Court in establishing that the DRT had erred in law and in having its decision against him quashed. In our view there was nothing to displace the normal expectation that, as a successful litigant, he would receive a contribution to his costs. We therefore allow the cross-appeal and quash the Judge’s decision not to award costs. We replace it with an order that the Minister pay costs on a 2B basis, plus disbursements as set by the Registrar.
Result
[85] We allow the appeal insofar as it relates to the decision to remit the matter to a differently constituted DRT and allow the cross-appeal insofar as it relates to the decision not to award costs in the High Court. The appeal and the cross-appeal are otherwise dismissed. The matter is remitted to the DRT for reconsideration in light of this judgment.
Costs
[86] Mr Carter argued that no costs should be awarded to Mr Al-Hosan in this Court even if he was successful, because Mr Al-Hosan’s need to appeal to the DRT and the subsequent litigation all arose out of his deliberate deception of immigration officials which led to his residency permit being revoked. We do not accept that that is the proper basis for determining whether costs should be awarded. Rather, Mr Al-Hosan has successfully resisted the appeal to this Court on all issues of substance and has been partially successful in his cross-appeal. In the normal course of events, should be entitled to costs as a successful party: r 53A(a) of the Court of Appeal (Civil) Rules 2005. We believe that an award of costs for a standard appeal on a band A basis, together with usual disbursements, is appropriate.
Solicitors:
Crown Law Office, Wellington for
Appellant
Ryken & Associates, Auckland for Respondents
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