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Prakash v The Minister of Immigration [2002] NZDRT 11 (10 December 2002)

Last Updated: 7 June 2012

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DRT 7/02

IN THE MATTER of the Immigration Act 1987

Respondent

BEFORE THE DEPORTATION REVIEW TRIBUNAL

NA McFadden — Chairman PM Burrows JP— Member RH Weller JP - Member

DECISION

1.0 BACKGROUND:

1.1 The Appellant appeals under Section 104 of the Immigration Act 1987 ("the Act") a

Deportation Order ("the Order") made under Section 91(1)(c) of the Act.

1.2 The Order is dated 6 December 2001 and is acknowledged as having been received by the Appellant on 5 February 2002. The Notice of Appeal was received in the office of the Tribunal on 13 February 2002 and records the grounds for the appeal thus:-

"Contrary to human rights and public interest that I should be deported".

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1.3 The Appellant is the holder of a Residence Permit granted to him on 14 February 1995. He was on 3rd December 1999 convicted in the High Court at Auckland on three charges of sexual violation by rape, two charges of sexual violation by unlawful sexual connection, three charges of threatening to kill, two charges of assault with intent, and charges of assault with a weapon and male assaults female, committed between 8 March 1998 and 26 January 1999. On 10 December 1999 the Appellant was sentenced to a total of 11 years imprisonment.

1.4 The Appellant appealed against his convictions and sentence to the Court of

Appeal, and that Appeal was dismissed by Judgment of 7 September 2000.

1.5 The Appellant is currently an inmate at Auckland Prison, and has a final release

date of 3 February 2007. He is not eligible for early release on parole.

1.6 The Appellant is a Fijian Citizen.

2.0 THE APPELLANT'S CASE:

2.1 Counsel said that the greater part of the Appellant's family, consisting of his sisters

and parents, reside in New Zealand, but for one sister who resides in Australia. The Appellant had neither a home or any employment opportunity in Fiji. The Appellant's parents aged 66 and 64 years respectively were New Zealand Citizens, and were not in good health. Counsel submitted that the effect of deportation would be to separate the Appellant from his family, and in all the circumstances that would be unduly harsh and unfair.

2.2 Counsel submitted that the Minister had not exercised a proper balance based on

the existing family circumstances and on the requirement to protect the family and he referred us to Article 23(1) of the International Covenant on Civil and Political Rights 1966, and to the decision in Tavita v Minister of Immigration 1994] 2 NZLR 257. Counsel said that if the Appellant was to be removed from his immediate family, that would give rise to humanitarian considerations including the effect on his "ageing and sick parents" who "need his continued family association".

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2.3 Counsel submitted that the Minister had erred in law by not providing sufficient

weight to the best interests of the immediate family, and had not correctly applied the statutory test of "unjust or duly harsh".

2.4 The Appellant gave evidence. He was born at Lautoka, Fiji on 20 October 1970. He is a Fijian Citizen, of Indian parentage. He first arrived in New Zealand on 29 January 1993 and was issued a Visitors Permit to 31 March 1993, so that he could attend the Australasian College of Business Studies where he was to undertake a course in Business Administration and Basic Accounting. The Appellant completed that course and was issued a Certificate of Competence on 31 March 1993.

2.5 On 29 March 1993 the Appellant was issued a further Permit valid to 15 October 1993 to enable him to complete a further course in Advanced Accounting and Business Skills at the Australasian College of Business Studies. He completed that course and was issued a Certificate in Business Studies on 5 August 1993 and subsequently departed New Zealand on 15 August 1993.

2.6 On 16 March 1994 a Residence Application was lodged in relation to the Appellant,

under family/marriage grounds. His application was sponsored by his wife, Ashika D Sagar, a Fijian Citizen holding a New Zealand Residence Permit. The Appellant and Ashika D Sagar had married on 10 March 1994 at Suva, and planned to have a religious ceremony in New Zealand at a later stage.

2.7 On 12 December 1994, the Suva Office of the New Zealand Immigration Service agreed to issue the Appellant a Residence Visa on the basis that he was in a genuine and stable relationship with Ashika D Sagar and was to be reunited with her in New Zealand. There was some delay however while the Suva Office enquired of the Appellant about a telephone call which had been received where the caller, claiming to be his wife, had withdrawn support for the Residence Application. The Immigration Service accepted the Appellant's explanation that the telephone call was a hoax perpetrated by a person impersonating his wife. On 6 February 1995, the Appellant was issued with a Residence Visa and arrived in New Zealand on 14 February 1995. His marriage to Ashika D Sagar appears to have been dissolved in 1998.

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2.8 In March 1999 Ms Ashika D Sagar wrote to the New Zealand immigration Service requesting that the Appellant's residence be revoked. At interview, Mrs Ashika D Sagar advised that following a legal marriage ceremony on 10 March 1994 no religious ceremony had been held in New Zealand as planned, and she had not lived with the Appellant as husband and wife. Ms Ashika D Sagar said that she had telephoned the Immigration Service Office at Suva and withdrawn her support for the Appellant's Residence Application, and thought that the Immigration Service had stopped his residence, but in early 1995 she learnt that he was in New Zealand. Subsequently Ms Ashika D Sagar's allegations were disputed by a friend, who is also the Appellant's niece.

2.9 At interview on 17 November 2000, the Appellant said that he had again married but was now separated from Ms R D , who he had married in New Zealand in February 1998. New Zealand Immigration Service records indicate that Ms R D was 18 years old when she arrived in New Zealand on 22 January 1998, and was issued a Permit valid to 28 February 1999. On 13 September 2000 Ms R D was approved residence on humanitarian grounds, following the decision of the Residence Appeal Authority.

2.10 The Appellant said that he had no immediate family in Fiji, nor did he have any prospect of obtaining living accommodation or employment. He said that there is high unemployment in Fiji and as he was of Indian ancestry and had already left his home country, his chances of obtaining any form of employment were "nil". He said that he had a sister Asnelata who is married and lives in Australia, and a sister Dropati Narayan who is married and lives in New Zealand. The Appellant's father is aged 66 and his mother 64, they are both New Zealand Citizens and reside at Auckland. He said that as the only surviving son and brother in the family his relationship with his parents and sisters were such that deportation would cause his parents intense mental pain and suffering.

2.11 The Appellant said that he wished to reform and advance himself and to eventually care for his parents in New Zealand. He said the family was a close unit and that it was important that he play his part in maintaining that unit. The Appellant provided the Tribunal with a medical certificate confirming that his father had undergone a

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double coronary artery bypass graft at Green Lane Hospital on 19 March 2002. The Appellant said his mother was a diabetic.

2.12 We received a Statutory Declaration from Mohammed Sahib of Masimasi, Sabeto, Fiji. The declaration set out that Mr Sahib was a Director and Manager of

Operations of Mohammed Sadiq & Sons Limited and that he personally had a farm '
and business interest of good worth. Mr Sahib has known the Appellant since the latter's birth as his parents lived in Masimasi and the Appellant's father worked for the family as a farm labourer and his mother as family housemaid. He said that the Appellant's family home had been destroyed by fire in the mid 1970s, and after that the family had stayed in the Sahib home. He said that his father had donated posts and corrugated, iron to enable the Prakash family to build a residential home on a settlement of displaced Indian farmers at Masimasi. He said that 80% of the people in that settlement were unable to find work and lived relying on small garden plots. Mr Sahib laid that when the Appellant's family had migrated overseas the Appellant's father had sold the corrugated shack in which they had lived in, and only four families remain in the village, the remainder having departed leaving behind the remains of their homes.

2.13 We received a Statutory Declaration from Miss Dewel Devi . Miss Dewel Devi set out details of the Appellant's parents and sisters. She said that all immediate living members of the Appellant's family have settled in either Australia or in New Zealand.

3.0 THE RESPONDENT'S CASE:

3.1 The Respondent called no evidence. Counsel submitted that although the

Appellant had married R D in February 1998, he was not living with her, and it was understood that he was now divorced, from Ms R D on her application. Counsel submitted that the circumstances that the Appellant would face in Fiji would be no worse than they would be for other Fijian Indians and submitted that his chances of employment may in fact be better given the education he had received in New Zealand. Counsel also submitted that the earliest the Appellant would face deportation was 3 February 2007 and that being so, over the next 4 1/2 years the economic climate in Fiji could well change.

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3.2 During the Appellant's time in New Zealand he had worked at a petrol station, was an announcer for Radio Tirana for 2 years, and worked as a Chef at Wendy's Restaurant for 2 years. He had completed business qualifications at the Australasian College of Business Studies and was completing a computer course in prison.

3.3 Counsel said that the Appellant had been convicted on three charges of sexual violation by rape for which he was sentenced to 11 years imprisonment (against a maximum penalty of 20 years imprisonment), two charges of sexual violation by unlawful sexual connection for which he was sentenced to 6 years imprisonment (against a maximum penalty of 20 years imprisonment), three charges of threatening to kill for which he was sentenced to 1 year imprisonment (against a maximum penalty of 7 years imprisonment), two charges of assault with intent to injure for x4iwhich was sentenced to 18 months imprisonment (against a maximum penalty of 3 years imprisonment), one charge of assault with a weapon for which the Appellant was sentenced to 15 months imprisonment (against a maximum penalty of 5 years imprisonment), and five charges of male assaults female for which the Appellant was sentenced to 1 years imprisonment (against a maximum penalty of that particular offence of 2 years imprisonment). The Appellant was sentenced for the 16 offences after conviction, he was also sentenced to 9 months imprisonment of each of five other charges of male assaults female which occurred between 1 June 1998 and 23 January 1999, to which he had earlier pleaded guilty. All sentences will be served concurrently. Counsel referred us to the sentencing notes of the Presiding Judge, and noted that there were a large number and type of offences carried out over a time period of 10 months, with the rapes being the most serious.

3.4 Counsel addressed us on the matter of New Zealand's obligations under the

International Covenants on Civil and Political Rights 1996, and the Optional Protocol to that Covenant, and the Convention on the Rights of the Child 1989. Counsel distinguished the Court of Appeal decision in Tavita v Minister of Immigration [1994] 2NZ2 NZLR7 and said that Tavita was primarily concerned with the separation of a young child from her father and the requirement to consider the International instruments in that decision making process. The separation of a

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young child from its parents was not a consideration in this case, but as Counsel said the message relating to protection by the State of a family unit carries through to general family considerations.

3.5 Counsel submitted that while the Appellant's parents may understandably want association with the Appellant, they do not "need" it as they have other children in New Zealand who can provide them with the required assistance and support. Counsel said that while parents and sisters might suffer some emotional hardship if the Appellant was to be deported, that separation was not an inevitable result of deportation — it was a result of the Appellant's family, who are New Zealand Citizens, choosing to remain in New Zealand.

3.6 Counsel submitted that although the Appellant had expressed a preference to remain in New Zealand so as to maintain the family unit, he was imprisoned, and would remain in prison for at least another 4 years and 7 months (as at the date of hearing). Fie was in no position to offer any material assistance to either parents or sisters, and any help required by the parents was probably currently being provided by their daughters. There was no evidence Counsel submitted that the Appellant's return to Fiji would aggravate his parents' physical or mental stability.

3.7 Counsel submitted that while protection of the family unit by the State is a highly

important consideration in the decision making process, it is not an absolute — the relevant interests of the Appellant, the family and the State must be weighed. At times other State responsibilities will weigh heavier in the final decision and in this case a major factor requiring consideration was the serious and prolonged nature of the offending by the Appellant and in the circumstances deportation of the Appellant would not be unjust or unduly harsh.

3.8 Counsel submitted that it would be contrary to the public interest for the Appellant to

remain in New Zealand — he had been convicted of extremely serious offences, and if he chose to abuse the privilege of residence status by committing serious offences, then he should lose that privilege. In addition, Counsel referred us to the Pre-sentence Report which identified a propensity for violence as a key factor in the case of this Appellant. It should also be recorded that same report identified the risk of re-offending as low to moderate.

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4.0 DISCUSSION:

4.1 We firstly address a matter raised by Mr Ryan, namely that the Minister had not

exercised a proper balance to protect the family, and had erred in law by not providing sufficient weight to the best interests of the immediate family and had not correctly applied the statutory test of "unjust or unduly harsh".

4.2 It is well established that it is not the task of this Tribunal to revisit the Minister's

decision. It is our task to make an original finding on whether statutory tests of injustice and undue harshness, and whether it would not be contrary to the public interest for the Appellant to remain in New Zealand, are met. This Tribunal so concluded in Lodhia v Minister of Immigration (DRT 4/96). In Faavae v Minister of Immigration [1996] 2 NZLR 243 it is stated (as to the Tribunal's responsibility:

"It has an original responsibility to evaluate and it must come to its decision, if it does, that it would be unjust or unduly harsh on the balance of probabilities, and on no higher standard".

4.3 The Appellant is a young man who has, during the short time he has been in New Zealand, experienced two failed marriages. He is aged 29 and has been in New Zealand lawfully under his Residence Permit since 14 February 1995. He has of course been in New Zealand previous to that under other Permits which had enabled him to carry out his studies here.

4.4 The Appellant is single, with no dependants and it appears he has few, if any,

assets. During his time in New Zealand he has completed studies at the Australasian Business College in business administration and basic accounting, and advanced accounting and business skills, and has received certificates in relation to those courses. He has worked variously as a petrol attendant, a radio announcer and as a chef. Up until his imprisonment he had been living with his parents at his sister's home.

4.5 The Appellant was convicted of 16 offences after a contested jury trial. The

offences relate to threatening to kill, violence and subsequently rape of his wife.

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The sentencing notes record that in accordance with Hindu religion and custom an arrangement had been made for the Appellant to marry his wife followed by a civil marriage and a Hindu marriage. Soon after the offences of which the Appellant was convicted commenced, and continued over the term of the marriage — approximately 10 months. The sentencing Judge's notes record:

"The victim of these offences was your wife. The effect upon her was apparent from her evidence and is described in detail in the Victim Impact Statement she has made. She made a very real effort to try and make the marriage work and she was under considerable cultural and religious restraint in seeking help and in leaving you. In essence, the devastating effect that it has had upon her life is summarised in the sentence in her Victim Impact Statement - "He has taken away all good feelings about life". She said that she blamed herself and would have killed herself without her extended family support. She still needs to live with them and cannot live on her own yet. She wants to make something of her life".

"She said she is very scared of other men and is too scared to become another wife to another husband. She says that you have ruined her life here because no Indian man would want to marry her".

4.6 In relation to the matter of injustice or undue harshness, we were encouraged by

both the Appellant and his Counsel to consider that the Appellant's chances of securing accommodation and/or employment in Fiji were negligible. In this regard, we note that the Statutory Declaration of Mr Sahib to which we have early referred, makes references to him having a farm and significant worth of property and it may well be that with the Appellant's qualifications he may be able to obtain work either through or from Mr Sahib. The basic question is whether it is unjust or unduly harsh for the Appellant to return to Fiji and in finding an answer regard will be had to conditions there if evidence is put to us in that regard. In the circumstances of this case, we do not think there is an obligation to assess conditions on the basis of the arguably better conditions in New Zealand. This was a matter addressed by the High Court in Kahn Rahman v Minister of Immigration (AP56/99) in the context of a Bangladeshi Citizen.

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4.7 The Appellant encouraged us to consider the necessity as a sole surviving son for him to remain in New Zealand to care for his aged parents. In that regard, we note that it will be 2007 before the Appellant is released from prison, and during that time care for his parents will have to be provided by other family members. That will have occurred for a significant period by the time the Appellant is released. At the time of his release his parents will be close to or over 70 years of age, they will have the option if they choose to visit their son in Fiji, either with or independently of other family members.

4.8 In Hallo v Minister of Immigration [1992] NZAR 509 there is set out the approach taken by the Tribunal in these cases - namely that the criminal offending is preponderant in the consideration of the issues, and whether other factors sufficiently mitigate the offending to make a deportation unjust or unduly harsh. In other recent decisions such as M v Minister of Immigration (High Court Wellington AP 84/99) the High Court considered the interests of family in relation to deportation proceedings and confirmed that the starting point in applying the test of injustice or undue harshness is the offence itself and the associated public interest factors. In Kumar v Minister of Immigration (HC Wellington — AP 101/99) the High Court concluded that the assessment of whether a proposed deportation is "unjust or unduly harsh" requires a balancing exercise which, amongst other things, means that the compassionate factors favouring an Appellant must be balanced against the seriousness of the offence and that is so even in a case where public interest does not require deportation.

4.9 Having considered the matter of injustice and undue harshness in terms of the

Appellant, and having had regard to the matters to which we are required to have regard under Section 105(2), we do not find that it would be unjust or unduly harsh on the Appellant for him to be deported. We fully understand that he would prefer to live in New Zealand but preference or even inconvenience or ordinary hardship does not constitute injustice or undue harshness (see Kissun v Minister of Immigration (HC Wellington — AP 306/96). As for his parents and sisters, we again understand that they would prefer for the Appellant to remain in New Zealand, but again there was no substantial evidence before us for the Appellant, that there was any real necessity for the Appellant to care for his parents, which in any event he is not doing now, and will not be able to do until at least 2007. That state of affairs

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has been brought about wholly by the Appellant's actions. The fact of the matter is that the Appellant's parents and sisters will get on with their lives, and the Appellant will be in no position to assist with that until his release many years from now. Appellants often come before this Tribunal and tell us that they now wish to make a change in their lives, and so it is now necessary for them to remain in New Zealand so that the interests of either themselves or their family can be served. All too often that statement is too little too late — bearing in mind that a state of affairs which has led in this case to the Deportation Order being made by the Minister, resulted from the Appellant's own actions and over an extended period.

4.10 We turn now to the matter of the public interest. Here we have an Appellant convicted of offences within his marriage which have had a major impact on his young (now) ex-wife. She will bear the scars of the Appellant's behaviour well on into the future. We have considered also the Pre-sentence Report on the Appellant. That report states:-

"An LSI-R assessment measure has been applied, and indicates that Mr Prakash has a low to moderate risk level of re-offending, and need for intervention".

"... when interviewed for this report maintained his denial of significant parts of this offending".

The matter of re-offending is just one of the public interest considerations that we have regard to. In this case we must also consider other interests of the public, and given the seriousness of these offences, the circumstances in which and the extend of period over which they occurred, the obvious impact on the victim, we consider that if the Appellant was to remain in New Zealand indefinitely not only is there further likelihood of impact on the victim, but a message would be sent that violence such as this, even within marriage, is somehow acceptable. This Tribunal is not of that view — violence in whatever form it takes, whether within marriage or not, is unacceptable in our society. We are not satisfied that it would not be contrary to the public interest for the Appellant to remain.

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5.0 DECISION:

5.1 Accordingly, the Appeal is dismissed and the Order confirmed.