Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

FAATAFA V THE MINISTER OF IMMIGRATION HC CHCH CIV-2005-409-001494 [2005] NZHC 119 (17 October 2005)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                              CIV-2005-409-001494



                                 LIPENE FAATAFA
                                     Appellant



                           
              v



                     THE MINISTER OF IMMIGRATION
                               Respondent



Hearing:       28
September 2005

Counsel:       A C Shaw and D Vukelic for Appellant
               H L Dempster for Respondent

Judgment:      17
October 2005


                       JUDGMENT OF PANCKHURST J


Introduction

[1]    This is an appeal in law against a decision
of the Deportation Review
Tribunal (the Tribunal), in which a decision of the Minister of Immigration ordering
the deportation of
the appellant to Samoa was unsuccessfully challenged.


[2]    In February 2003 Mr Faatafa was sentenced to five years imprisonment
for
wounding with intent to cause grievous bodily harm. Subsequently, the Minister




FAATAFA V THE MINISTER OF IMMIGRATION HC CHCH
CIV-2005-409-001494 17 October 2005

ordered that he be deported. He appealed against the order upon the statutory
grounds 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" : s105(1) Immigration Act 1987 (the Act). However, the
Tribunal was not satisfied
that this test was met and, accordingly, the appeal was
dismissed.


[3]    The present appeal is based on two questions of law,
which centre upon the
above statutory test and whether it was correctly applied in the circumstances of this
case. I shall set out
the questions of law, shortly.


Two preliminary issues


[4]    The appeal is out of time. The appeal was heard on 12 July 2004.
The
decision was not issued until 8 June 2005. Mr Faatafa had 28 days within which to
lodge a notice of appeal : s118. In fact the
appeal was filed on 25 July, therefore
about three weeks out of time.


[5]    Counsel for the respondent, Mr Dempster, did not oppose
an extension of
time pursuant to s123 of the Act. I shall consider the merits of the appeal and return
to the question of an extension
of time in light of the conclusions reached concerning
the questions of law.


[6]    The second matter concerns security for costs.
Pursuant to r713(2) of the
High Court Rules security for costs must be fixed, "unless the Judge considers that in
the interests of
justice no security is required". In terms of r713(5) the decision
concerning security may be deferred at the time of the initial
case management
conference "if an appellant has applied for legal aid under the Legal Services Act
2000". Such was the case here.


[7]    On 13 September Hansen J set the appeal down for hearing and "suspended"
security for costs. The Judge also directed that
the appellant file an affidavit of
means, no doubt because he considered that if a legal aid decision was not made

before the hearing
date, a decision may be reached that in the interests of justice
security was not required. Of course, if legal aid is granted, security
is waived.


[8]     In the event there has been no decision in relation to Mr Faatafa's legal aid
application. On the other hand
an affidavit of means was filed. Mr Dempster
challenged its adequacy.        In essence it contained an assertion that all of the
appellant's wages were absorbed in "boarding costs and repayment of debts", so that
he had "little to no funds in (his) bank account".
A transaction list for the bank
account was annexed as an exhibit. This indicated that Mr Faatafa receives wages of
$260.41 per week
and some weeks an extra $100, presumably on account of
overtime work. There are regular withdrawals from the account, but the transaction
list does not show a running balance. Counsel contended there was insufficient
information to enable me to conclude that security
was not required in the interests
of justice.


[9]     When pressed Mr Dempster indicated that he would prefer the appeal to
proceed, rather than for it to be adjourned
so that the question of security could be
properly resolved. While I agree with him that the information provided concerning
the
appellant's means is inadequate, my impression is that legal aid may well be
granted and, if it is not, that with additional information
security may be waived in
terms of r713(2). In these circumstances, unsatisfactory as they are, I indicated to
counsel that I would
direct security was not required, and the appeal proceeded in
light of that indication.


The questions of law


[10]    The questions
of law as framed in the notice of appeal were:

        a     The Deportation Review Tribunal incorrectly applied the test to be
met
              by the appellant, in order to quash a deportation order pursuant to
              section 105(1) of the Act, by
finding that "considerable hardship" was
              insufficient to render the deportation as being "unjust or unduly harsh";
              and
        b     The Deportation Review Tribunal incorrectly applied the test to be met
              by the appellant,
as required by section 105(2)(e) of the Act, in that it
              failed to give fair consideration to the particular circumstances
of the
              offence and of the offender, and instead focused primarily on the
              seriousness of the offence.

These contentions underwent a degree of refinement in the course of argument, a
matter to which I will return in due course.


[11]   The right of appeal conferred by s117 of the Act restricts appeals to this
Court to a "question of law". Error of law contemplates
the application of a wrong
legal test, a conclusion reached without evidence to support it, or a failure to reach a
conclusion in
relation to which there were unchallenged primary facts supportive of
such conclusion. I did not discern any difference between counsel
as to the required
approach. In this instance the suggested errors of law fall into the domain of
applying a wrong legal test, if
anything.


Factual background


[12]   The appellant was born in Western Samoa on 15 March 1962, so that he is
now 43 years of age.
He remains a Western Samoan citizen.


[13]   On 11 June 1984 he arrived in New Zealand and was granted a temporary
permit, and subsequently
a second such permit, which expired on 25 September
1984. Thereafter the appellant remained in New Zealand unlawfully.


[14]   On
18 October 1988 the appellant lodged an application for residence in New
Zealand, on the basis of his marriage to a New Zealand permanent
residence holder.
The application was declined.


[15]   On 1 March 1992 Mr Faatafa lodged a second residence application on the
basis that, by then, his family comprised his wife and two children who had been
born in New Zealand.


[16]   On 21 January 1993
the appellant was granted New Zealand residency.


[17]   On 27 June 2002 the appellant assaulted his wife by striking her repeated
blows to the head with a mallet. She sustained extensive and serious facial and head
injuries. Criminal charges were laid.

[18]
   On 12 December 2002 in the High Court at Auckland Mr Faatafa pleaded
guilty to a charge of wounding with intent to cause grievous
bodily harm. On 11
February 2003 he was sentenced by Venning J to five years imprisonment.


[19]    I interpolate at this point
that in terms of s91(1)(d) of the Act the appellant
became liable for deportation, despite being the holder of a residence permit,
when
he committed this offence within ten years of the grant of such permit and upon his
being sentenced to imprisonment for five
years. In fact Mr Faatafa had held his
residence permit for nine years five months at the date he committed the crime. It is
also
noteworthy that had his sentence been anything less than a five year term, the
further cumulative requirement of s91(1)(d) would
not have been satisfied. That
said, the fact is that Mr Faatafa did commit a crime within the ten year period and
upon which he was sentenced to five years imprisonment.


[20]    On 26 August 2003 the Minister of Immigration issued a deportation order.
On 9 October 2003 an appeal was filed against
the order.


[21]    The hearing before the Tribunal was on 12 July 2004. On 15 February 2005
the appellant was released from prison.
Finally, on 8 June 2005 the Tribunal issued
its written decision in which the appeal against the deportation order was dismissed.


[22]    In addition to this chronology it is common ground that, the subject
conviction aside, Mr Faatafa has fared well during
his time in New Zealand. He has
fashioned what the Tribunal described as "an excellent work record". He has been in
steady employment
as a machine operator or fork hoist driver. Only briefly, between
the date of his conviction and sentencing, was he in receipt of
a benefit.


[23]    The appellant encountered difficulties in relation to his marriage in about
2000. By then Mr and Mrs Faatafa
had three children, who were born in 1989, 1990
and 1995.     For approximately two years, until shortly before the assault was
committed
on 27 June 2002, the appellant and his wife were living apart. However,
they were attempting to reconcile at the time of the assault.
Two of the children had
been sent to Australia by Mrs Faatafa, which was a bone of contention between
them.

[24]   Mrs Faatafa
and the three children are now resident in Australia. Hence,
when Mr Faatafa was released from prison earlier this year he made his
home in
Christchurch, where he has the support of his sister and her family.


[25]   Generally the Tribunal found that the appellant
has been a worthwhile
member of society since he has been in New Zealand, save for his one conviction. It
also noted that at the
conclusion of his sentence an assessment was reached that his
risk of reoffending was low, the more so if he associated with persons
who did not
condone the use of violence, continued to be alcohol abstinent and took counselling
if he became involved in another
intimate relationship.


The Tribunal decision


[26]   Mr Shaw was not critical of the decision of the Tribunal, save in relation
to
the suggested errors of law. He accepted that it was detailed and closely considered.
I agree with these observations. The judgment
contains a meticulous discussion of
all of the factors set out in s105(2) being the section which empowers a tribunal to
quash a
deportation order:

       (2) In deciding whether or not it would be unjust or unduly harsh to deport
           the appellant from
New Zealand, the Tribunal shall have regard to the
           following matters:
              (a)    The appellant's age:
     
         (b) The length of the period 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
nature of the offence or offences of which the appellant
                   has been convicted and from which the liability for deportation
                   arose:
               (f)   The nature of any other offences of which the appellant has
                     been
convicted:
               (g) The interests of the appellant's family:
               (h) Such other matters as the Tribunal considers
relevant.

[27]   Given the focused nature of the questions of law posed by this appeal, there is
no need for me to duplicate anything
approaching the detailed discussion contained
in the Tribunal's decision. Instead, I can go straight to that section of the decision

headed "Summary" in which the Tribunal set out the considerations for and against
deportation, and its conclusions.


[28]   First
the Tribunal said this:

       [38] We now summarise the factors to be balanced in this case:

           Factors in favour of deportation:

           (a)   The offending was very serious and involved an act of serious
                 violence;
           (b)   The offence involved
the use of a weapon (steel mallet);
           (c)   The victim has serious and ongoing side-effects from the
                 offending;
           (d)   There is possibly one known family member residing in Samoa;
           (e)   Transferable work skills;
       
   (f)   Appellant's children live in Australia;
           (g)   The Appellant's immediate family resident in America Samoa;
  
        (h)   The Appellant has lived in New Zealand lawfully for 11 years, 2
                 of which have been in prison.

I am
unsure why factor (h) is listed as a matter favouring deportation.


[29]   The Tribunal continued:

           Factors in Appellant's
favour to militate against deportation:

           (a)   The Appellant is a first time offender and pleaded guilty to the
     
           offence at an early stage;
           (b)   The Appellant has addressed the causes of his offending and
             
   undertaken counselling and anger management in the Faith-based
                 Unit at Rimutaka;
           (c)   The Tribunal
regards his remorse as genuine;
           (d)   He has not incurred any charges during his time in prison and his
             
   behaviour during imprisonment has been favourable;
           (e)   There is evidence of immediate family support in New Zealand
                 with little evidence of close immediate family residing in Samoa;
                 whilst there is little evidence
of family living in American Samoa
                 there are no automatic rights to residence;
           (f)   He is assessed as
low to moderate risk of re-offending;
           (g)   The Appellant has a good work record and there is no evidence of
        
        being a "drain on the taxpayer";
           (h)   He has resided in New Zealand for 20 years (of which 11 years are
    
            lawful).

[30]   It was then recorded that the Tribunal had found the case "a difficult matter
... to determine".   
Citing from a previous decision of this Court the Tribunal
observed that it was required to make a value judgment, following a balancing

exercise which essentially involved an assessment of the compassionate factors
against the seriousness of the offence.


[31] 
 Then in the next paragraph the Tribunal made a pivotal finding concerning
whether deportation would be unjust or unduly harsh:

       [40] We have taken into account the circumstances of the offending, and
       the Appellant's genuine expression of remorse.
However, we also remind
       ourselves that the test according to Fa'avae (supra) goes beyond
       considerations of convenience
or ordinary hardship. There is no doubt that if
       the Appellant is deported to Samoa there will be considerable hardship.
 
     But on the evidence before us we do not find that the threshold has been met
       for establishing that deportation would
result in injustness or undue
       harshness to the Appellant. (emphasis added)

The "considerable hardship" finding gave rise
to the first question of law, to which I
will turn shortly.


[32]   The next section of the decision, headed "Public interest" contained
an
assessment of the second limb of the statutory test. The Tribunal began by noting
that whether there was a likelihood of reoffending,
and whether the offending itself
was of a particularly serious nature, would likely determine whether it was in the
public interest
to allow the appellant to remain.         Detailed reference to various
materials held by the Department of Corrections followed,
including a description of
the psychological evidence relevant to Mr Faatafa's risk profile in terms of
reoffending. As I read this
part of the judgment, the Tribunal seemed to accept that
the appellant was of good character (save for the one serious crime), and
that there
were positive signs he had made good progress in addressing the causes of his
offending.


[33]   However, an adverse conclusion was reached:

       [45] We take into account
that at the time of hearing the Appellant was
       completing his sentence satisfactorily, and that the Faith-based Unit consider
       that he has made considerable gains from the programme. He also appeared
       interested in completing other programmes
to cement progress he has made.
       As was stated in Amosa v Chief Executive of the Department of Labour
       (unreported, High
Court, Wellington, AP 208-98, 3 April 2000, Gendall J) at
       page 14:

              "The importance of good or reformed character
is more particularly
              [relevant] in considering whether it would be contrary to the public

             interest for
the appellant to remain in New Zealand. The risk, or
             rather a calculated risk, for further offending here is an aspect
of that
             public interest."

Next followed the decision itself which was that for the reasons set out "the Appeal
should
be dismissed and the (Deportation) Order confirmed".


Question 2 : "Nature of the Offence"


[34]   Although this was the second
alleged error of law, for reasons which I trust
will become clear, I think it is appropriate to confront it first. To recap, the
question
was posed in these terms:

       The Deportation Review Tribunal incorrectly applied the test to be met by
       the appellant,
as required by section 105(2)(e) of the Act, in that it failed to
       give fair consideration to the particular circumstances
of the offence and of
       the offender, and instead focused primarily on the seriousness of the offence.

[35]   Section 105(2)(e)
requires the Tribunal to have regard to "the nature of the
offence or offences of which the Appellant has been convicted and from
which the
liability for deportation arose". The gist of the argument was that on a proper
appreciation of the terms of the decision
the Tribunal had effectively focused upon
the seriousness of the offence, to the exclusion of a range of factors pertaining to
both
the offence and the offender which, on any view of it, significantly mitigated
the crime. Put another way, the effect of the argument
was that the Tribunal was
mesmerised by the awfulness of the crime and did not, therefore, consider other
matters which were relevant
to an assessment of the "nature of the offence".


[36]   Mr Shaw put the argument in various ways in the course of his submissions.
He began with the point that it was the gravity of the particular offence which fell for
consideration, not the seriousness of that
type of offence per se. I agree, as did Mr
Dempster. By reference to parts of the decision in which the Tribunal reviewed at
some
length the sentencing observations of Venning J, counsel argued that
s105(2)(e) was approached with a "closed mind". At another point
the approach of
the Tribunal was criticised as absolutest "because the nature of the offence was
allowed to override all other factors".
At another point Mr Shaw put the argument in
terms that the Tribunal "gave an overwhelming primacy to the offence of wounding

with
intent to cause grievous bodily harm ..." so that the Tribunal "prevented the
particular circumstances of the offence and of the
offender from receiving any fair
consideration".


[37]   This argument owed a good deal to the judgment of Durie J in Levi Leiataua
v The Minister of Immigration (Wellington CIV-2003-485-742, 26 November 2003).
The case was similar to the present one in that a
deportation order had been made
against the appellant, who was a school boy aged 16 when he committed rape, and
the thrust of the
argument was that the Tribunal erred because of its single focus
upon the type of offence involved, rather than the gravity of the
particular offence.
The Judge accepted an argument that the Tribunal was wrongly persuaded to take the
view that a conviction for
rape in itself, meant it was not unjust, and it was in the
public interest, for the offender to be deported. This I consider was the basis of the
decision to allow the
appeal. Durie J added this:

       [31]    In similar vein I must reject emphatically the suggestion made in
       submissions
in this case that a matter may be deemed to have been
       considered and appropriately weighed simply because the matter has been
       mentioned in the recitation of arguments and facts. It is one thing to note a
       fact and another to assess its significance
or to determine whether weight
       should be given to it or not. Where an assessment is called for, as here, then
       the assessment
must be given, and it must be given openly and transparently.

Mr Shaw submitted that the same situation obtained in the present
case. That is,
although the Tribunal mentioned a range of matters in its decision, it could not be
said that proper weight had been
accorded to them.


[38]   Before I turn to consider whether this criticism can be validly made in
relation to the decision under
appeal, I record my concern at the scope which exists
for the reasoning contained in the above quotation to be misunderstood, or
misapplied. There may be cases where a list of factors, or considerations, are listed
in a decision, but, on analysis, it is obvious
that there has been no rational
assessment of them. But for such a threshold to be met I think that the decision is
likely to be
erroneous in law for irrationality in a Wednesbury sense, or perhaps
because there are no reasons given in support of the essential
conclusion.

[39]   But where, as here, a value judgment must be made, and the decision-maker
refers to a range of matters which
have influenced the final judgment, an appellate
court must be hesitant to characterise the decision as erroneous in law because
such
factors have merely been recited, but not considered. Otherwise, there is obvious
potential for an appellate Judge, whose function
is confined to correcting errors of
law, to review the merits of the decision in the guise of deciding that relevant factors
have
been recited, but not in fact considered.


[40]   In any event I am not persuaded that the Tribunal was overwhelmed by the
awfulness
of the crime and did not, as a result, have regard to other factors pertaining
to the offence and the offender. In argument considerable
emphasis was given to the
extent to which the sentencing remarks of Venning J were mentioned and discussed
in the Tribunal's decision.
While that is so, I am unpersuaded that the Tribunal has
inappropriately deferred to the views of the sentencing Judge.


[41]  
It did accept that the comment of Venning J "whatever the trigger for the
attack was there can be no excuse or justification for
acting in the way you did" was
apposite. It seems to me such assessment was virtually inevitable. Plainly there
were differences
between Mr Faatafua and his wife, particularly concerning her
sending two of the children to Australia. But these differences did
not mitigate the
seriousness of the crime.


[42]   On the other hand the Tribunal did in my view place the crime in its proper
context.
This is evident when one looks at the summary of factors militating against
deportation [para [29]). The crime was viewed as out
of character. Mr Faatafa's
early plea of guilty was recognised. His remorse was accepted to be genuine.
Moreover, the Tribunal brought
to account the steps taken by Mr Faatafa, post
conviction and sentence, to address the causes of the offending.              In these
circumstances I am unpersuaded that the Tribunal focused on the gravity of the
particular offence, at the expense of any proper consideration
of the circumstances of
the offence and the offender.

Question 1 : was the "considerable hardship" finding sufficient?


[43] 
   This question of law was an argument that the Tribunal erred in expressly
finding that "considerable hardship" was insufficient
to render the deportation unjust
or unduly harsh. In other words, Mr Shaw contended that the Tribunal set the bar
too high and in doing so misunderstood the statutory
test.


[44]     The thrust of the argument was sought to be captured in submissions as to the
meaning of the words "considerable"
and "hardship". The former was equated with
significant, or large in extent or degree. Hardship was likened to suffering. Hence,
counsel submitted that considerable hardship equated to significant suffering, which
was said to be sufficient to satisfy the test
that deportation would be unjust or unduly
harsh.


[45]     Mr Shaw sought to bolster the basic argument by reference to various
factual
considerations, which he urged me to accept as sufficient to meet the test and,
therefore, as confirmatory of the conclusion
that the Tribunal must have applied a
standard which was too stringent. I do not consider that this aspect of the argument
assisted
matters. It is not my function to reassess the various factual issues and
decide whether I agree with the weight accorded to them
by the Tribunal.


[46]     Mr Dempster stressed this in the course of his argument. He rightly pointed
out that the Tribunal hears
many deportation appeals and has therefore developed an
expertise and experience in assessing different cases and factual situations.
Moreover, this Court exercises only a supervisory jurisdiction over the Tribunal,
limited to the correction of legal error. A difference
of opinion is not an error of law.


[47]     More specifically, and with reference to the considerable hardship finding,
counsel
submitted that the conclusion of the Tribunal was impeccable. Focusing
most upon the word "considerable", Mr Dempster substituted
"worthy of
consideration by reason of its magnitude" as an appropriate definition of the word,
which was said to demonstrate that
considerable hardship did not equate to
unjustness or undue harshness. Put bluntly, he submitted that considerable hardship
might
well be thoroughly deserved, and therefore may not be unjust or unduly harsh.

Counsel contended that "not only does the finding
disclose no error of law, as a
matter of abstract reasoning it is correct".


[48]   What does the test that it would be unjust,
or unduly harsh to deport
someone, comprehend? First, 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 the 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 that:

           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 a particular standard,
eg beyond reasonable doubt.

It then approved and adopted an observation from an earlier criminal case:

       The phrase "is satisfied"
means simply "makes up its mind" and is indicative
       of a state where the Court on the evidence comes to a judicial decision.
       There is no need or justification for adding any adverbial qualification ...

[49]   A number of the cases to which I was
referred, and indeed the submissions of
counsel, endorsed the thinking that s105 requires a balancing exercise to be
undertaken,
by which the seriousness of the offence is to be weighed against the
compassionate factors said to render the pending deportation
unjust or unduly harsh.
In real terms this may frequently be the case. However, s105(2) does not mandate a
balancing exercise in
quite these terms. Rather it lists a range of matters to which
the Tribunal shall have regard in assessing whether it would be unjust
or unduly
harsh to deport the appellant from New Zealand. Indeed, "the nature of the offence
or offences of which the Appellant has
been convicted and from which the liability
for deportation arose" is factor (e) amongst eight. It is not accorded primacy or any
particular status. But, that said, in many cases the essential task of the Tribunal will
entail assessing the seriousness of the
offence (or offences) as against the personal
militating factors.


[50]   Although the concepts of unjustness and undue harshness
are disjunctive, it is
difficult, I think, to readily draw a distinction between them in the present statutory

context. Mr Dempster
submitted that the test was whether deportation would be
unjust in the sense of being unduly harsh. That, to my mind, neatly captures
the
essence of the test.


[51]     Does the finding of considerable hardship mean that deportation of
Mr Faatafa would be unjust,
in the sense of being unduly harsh? Although a fine
line distinction is involved, I think Mr Dempster was right in submitting that
considerable hardship is something less than undue harshness. It seems to me that
the Tribunal deliberately used the phrase considerable
hardship in order to convey
that the factors which militated against deportation were indeed significant.
However, it also found
that the case remained one which did not satisfy the statutory
test, did not quite cross the unduly harsh threshold.     I doubt
that this point is
susceptible of further elaboration. For these reasons I consider that the argument
fails.


Result


[52]    
Although leave to appeal is granted, the appeal is dismissed. No purpose
would be served in making an order for payment of costs
by the appellant.




_________________________________________________________________________________
Solicitors:
Lane Neave, Christchurch
for Appellant
Crown Law Office, Wellington Central for Respondent