|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2007-485-1333
UNDER the Immigration Act 1987
IN THE MATTER OF an appeal under section
115A of the
Immigration Act 1987
BETWEEN AHMAD ZANZOUL
Appellant
AND THE REMOVAL REVIEW AUTHORITY
First Respondent
AND CHIEF EXECUTIVE, DEPARTMENT OF
LABOUR
Second Respondent
CIV-2008-485-854
AND UNDER the Immigration Act 1987, the Judicature
Amendment Act 1972, the New Zealand
Bill of Rights Act 1990,
the International
Covenant on Civil and Political Rights, the
Legal Services Act 2000, Magna Carta and
other imperial due process statutes, and
the
Common Law
IN THE MATTER OF an application for judicial review
under
section 146A of the Immigration Act 1987,
and
declarations
BETWEEN AHMAD ZANZOUL
Applicant
AND CHIEF EXECUTIVE, DEPARTMENT OF
LABOUR
Respondent
ZANZOUL V THE REMOVAL REVIEW AUTHORITY AND ANOR HC WN CIV-2007-485-1333 9 June
2009
CIV-2008-485-855
UNDER the Judicature Amendment Act 1972, the
New Zealand Bill of Rights Act 1990, the
International Covenant on Civil and
Political Rights, the Legal Services Act
2000, Magna Carta and other imperial due
process statutes, and the Common Law
IN THE MATTER
OF declarations in respect of human rights
issues
BETWEEN AHMAD
ZANZOUL
Applicant
AND ATTORNEY-GENERAL
Respondent
Hearing: 27, 28, 29, 30 April; 1 and 4 May 2009
Counsel:
T Ellis, A Shaw and S M Ruthven for appellant
P A McCarthy and C A Griffin for respondents
Judgment: 9 June 2009
RESERVED JUDGMENT OF DOBSON J
Summary of
issues and outcome........................................................................................................................
[1]
Scope of the proceedings .................................................................................................................................... [7]
Mr Zanzoul's appeal........................................................................................................................................
[7]
The Chief Executive's cross-appeal.................................................................................................................
[9]
Leave to argue judicial reviews........................................................................................................................
[17]
Factual background..........................................................................................................................................
[42]
Terms of RRA decision.....................................................................................................................................
[58]
Grounds argued ................................................................................................................................................
[69]
Concerns as to process ..................................................................................................................................
[70]
Errors of law in RRA's approach ..................................................................................................................
[71]
Misconceived relevant and irrelevant considerations ...................................................................................
[75]
Process ...............................................................................................................................................................
[78]
Failure to disclose prejudicial information ...................................................................................................
[78]
Well-founded fear of persecution...................................................................................................................
[99]
RRA approach to s 47(3) flawed?..................................................................................................................
[122]
Separation of appellant from children does not amount to exceptional circumstances............................... [123]
Appellant's mental health does not amount to exceptional circumstances .................................................. [141]
Applicability of Article 9 United Nations Convention on the Rights of the Child........................................ [143]
First ground of appeal: RRA erred in approach to stringency of `public interest test', and second ground
of cross-appeal: RRA
erred in attributing humanitarian factors in public interest test............................... [148]
Appellant's second ground
of appeal: A positive finding in the second limb .............................................. [164]
Respondent's second ground
of cross-appeal: approach to second limb .................................................... [169]
Summary on the approach to
s 47(3)........................................................................................................... [180]
Failure
to have regard to relevant considerations........................................................................................
[181]
Consideration of medical reports ................................................................................................................
[181]
Failure to consider s 8 of BORA..................................................................................................................
[191]
Failure to consider s 9 of BORA..................................................................................................................
[197]
Failure to take into account Articles 17 and 23(1) of ICCPR .....................................................................
[203]
Section 27 of BORA ..................................................................................................................................... [206]
Failure to take into account lack of future risk,
and the benefits Mr Zanzoul could provide to
the New Zealand community........................................................................................................................
[209]
Failure to undertake a proportionality assessment......................................................................................
[214]
Summary on grounds of appeal and first judicial review............................................................................
[234]
The second application for judicial review ...................................................................................................
[235]
Costs.................................................................................................................................................................
[249]
Summary of issues and outcome
[1] The appellant (Mr Zanzoul), a Syrian national, entered New Zealand on a
false
passport on 12 March 2004. His application for refugee status was declined,
and the Refugee Status Appeals Authority (RSAA) dismissed
an appeal against that
decision on 28 June 2005. Mr Zanzoul's last temporary permit expired on 11 July
2005 and since then he has
remained in New Zealand in circumstances that the
Immigration Act 1987 (the Act) deems to be unlawful. Consequently, s 45 of the
Act requires that he leave New Zealand.
[2] On 30 May 2007 the Removal Review Authority (RRA) dismissed an appeal
against
the requirement for Mr Zanzoul to be removed, and he initially appealed to
this Court against the RRA's decision. The jurisdiction
of the RRA on appeals such
as Mr Zanzoul's involves the application of s 47(3) of the Act. That provides as
follows:
47 Appeal against requirement to leave New Zealand
...
(3) An appeal may be brought
only on the grounds that there are
exceptional circumstances of a humanitarian nature that would make it
unjust or unduly harsh for the person to be removed from New Zealand, and
that it would not in all the circumstances
be contrary to the public interest to
allow the person to remain in New Zealand.
[3] The present appeal
was pursued on diverse grounds. I have found two
discrete arguments
challenging the RRA decision to be made out. They relate first to
non-disclosure to Mr Zanzoul of prejudicial material conveyed to
the RRA (see
paragraphs [78] to [98] below). Secondly, the RRA's positive finding that allowing
Mr Zanzoul to remain would be contrary
to New Zealand's public interests, when the
terms of s 47(3) do not authorise such a finding (see paragraphs [164] to [168]
below).
Although I am not satisfied that the second error, in the circumstances of the
appeal, would necessarily have warranted a direction
for reconsideration on its own,
such a direction is appropriate in relation to the first error and the case for it is
strengthened
by the second error. I therefore order that such a reconsideration
should occur, on a de novo basis, so that all aspects of the decision,
including those
motivating unsuccessful arguments on a cross-appeal that is dismissed, will be open
for fresh determination.
[4]
Mr Zanzoul claims a fear of persecution if he is returned to Syria. I deal with
this argument in paragraphs [99] to [121] below.
This was advanced in a form not
readily considered as a ground of appeal from the RRA. In his particular
circumstances,
it may constitute a ground to make a new claim for refugee status
under s 129J of the Act. Clearly, if such an initiative is to be
pursued, it should be
exhausted before the fresh appeal before the RRA. However, in all such initiatives
there is an onus on Mr Zanzoul
to pursue matters promptly, and his failure to do so
may see delay arise as a factor against him.
[5] I have heard argument on a plethora of other points
sought to be invoked in
Mr Zanzoul's name. This judgment is made significantly longer than it would
otherwise be, because of
the acknowledgement of at least the main points on the
arguments put. In editing the judgment, I have excluded references to many
subsidiary points that did not alter the weight or emphasis able to be given to the
larger arguments that they were intended to support.
I remain satisfied that I have
considered everything.
[6] With respect to counsel, apparently heart-felt conviction in the rightness
of
propositions furthering the cause of human rights is no substitute for objective
analysis of their potential impact under the
Act. Nor do I accept the apparent
necessity to exhaust remedies in New Zealand Courts as a pre-requisite to advancing
claims in international
fora as a justification for expanding the arguments beyond
those that might realistically assist Mr Zanzoul. In dealing cursorily
with some of
the arguments towards the end of this judgment, I intend no disrespect to the lofty
ideals involved. My aim is to focus
on what genuinely matters in dealing with
Mr Zanzoul's inarguably serious situation. A priority must be to facilitate a final
resolution
of his position without adding unduly to what has already been a very
protracted process.
Scope of the proceedings
Mr Zanzoul's
appeal
[7] Since filing the appeal, Mr Zanzoul filed two applications for judicial review
against the Chief Executive of the
Department of Labour and the Attorney-General.
These applications seek to raise other deficiencies in the way the New Zealand
Government
has dealt with Mr Zanzoul.
[8] As advanced in a set of submissions filed in March 2008 and described as
including amended grounds
of appeal, nine grounds of appeal were foreshadowed on
behalf of Mr Zanzoul. These included that the RRA:
a) adopted
the wrong approach to the test in s 47 of the Act;
b) erred in law in making a positive finding that allowing Mr Zanzoul
to
remain in New Zealand would be contrary to the public interest in
terms of that aspect of the test
under s 47;
c) erred in failing to have regard to the rights recognised by ss 8, 9 and
27 of the New Zealand
Bill of Rights Act 1990 (BORA);
d) erred in failing to undertake an assessment as to proportionality of
consequences at common law;
e) failed to disclose receipt of prejudicial information;
f) erred in failing
to have regard to considerations relevant to its s 47
deliberation;
g) erred in failing to have regard
to articles 17 and 23(1) of the
International Covenant on Civil and Political Rights (ICCPR);
h) erred
in law when taking into account irrelevant factors and failed to
take account of relevant factors; and
i)
failed to afford Mr Zanzoul a fair hearing contrary to s 27 of BORA
and the common law.
The Chief Executive's
cross-appeal
[9] Leave to file a notice of cross-appeal out of time had been granted by consent
on 7 August 2007, in circumstances
where Ms Curtis, counsel then acting for
Mr Zanzoul, also agreed with the observation for the respondent to the appeal that an
amended
notice of appeal was required. That fact, plus a range of other
circumstances, had delayed the filing of a notice of cross-appeal
which, in
accordance with (then in force) r 711, ought to have been filed and served by
2 August 2007. Memoranda of Counsel for
the parties dated 3 August 2007
reflected the agreed course that the proceedings should take, including the filing of
amended grounds
of appeal and leave being granted for a cross-appeal to be filed out
of time. The notice of cross-appeal was duly filed on 4 September 2007.
[10] Notwithstanding those circumstances in which the cross-appeal had been
brought, Mr Ellis objected to the
Court hearing the cross-appeal on the basis that
there was no jurisdiction to do so. His argument rested on an interpretation of
s 115A of the Act as bestowing on any party to an appeal before the RRA a right to
bring an appeal to the High Court on a question
of law. He argued that the absence
in s 115A of any reference to a cross-appeal meant that, in circumstances where both
parties were
dissatisfied and considered errors of law had occurred, then both had to
pursue such challenges by filing discrete appeals. Mr Ellis
argued that he could not
simply consent to a cross-appeal where the Court had no jurisdiction to entertain one,
and that because
the respondent's cross-appeal was not formulated as a discrete
appeal on its own, it could not be heard.
[11] However, s 115A(5)
of the Act contains an entirely conventional reference to
all appeals under the section being dealt with "in accordance with the
rules of
Court". The superseded r 711, under which leave to commence the cross-appeal out
of time was granted, is now replicated
in r 20.11 of the new High Court Rules. The
opening part of that rule provides:
20.11 Cross-appeal
(1) A respondent
wishing to contend at the hearing of an appeal that the
decision appealed against should be varied must--
(a) file a notice of cross-appeal in the registry of the court; and
(b) file a copy of the notice
in the administrative office; and
(c) serve a copy of the notice on every other party directly
affected by the cross-appeal.
(2) A notice of cross-appeal must be filed no later than 2 working days
before the case management conference relating to the appeal,
except with the leave of the court.
[12]
The provisions in Part 20 apply to a miscellaneous range of appeals to the
High Court brought under all enactments other than three
specified exceptions, not
including the Act. Accordingly, those rules apply to the present appeal under the
Act. The commentary in
McGechan on Procedure at HR20.11.01 commences:
Where a notice of appeal has already been given, and one of the other parties
also wishes to challenge aspects of the decision under appeal, it will be
necessary for that party to file a notice
of cross-appeal.
[13] Accordingly, the correct approach to the scope of s 115A is that once either
party commences an appeal,
challenges to the decision already under appeal that the
opposing party intends to pursue are to be brought before the Court by way
of cross-
appeal. There are well-settled practices for dealing with competing contentions in
this way. There would be obvious inefficiencies
in requiring separate appeals to be
pursued, were s 115A to be interpreted in the narrow way Mr Ellis contends for. I
am satisfied
that the Court does have jurisdiction to hear the competing contentions
sought to be advanced on behalf of the respondent, by means
of its cross-appeal, and
accordingly dismiss that particular objection raised by Mr Ellis.
[14] I intend to deal with complementary
arguments raised by the appeal and the
cross-appeal together. The challenges raised on behalf of the respondent in the
cross-appeal
are:
a) That the RRA misinterpreted the first limb of the s 47(3) test by
treating separation from children,
as recognised in Article 9 of the
United Nations Convention on the Rights of the Child (the
Convention),
as sufficient of itself to constitute unduly harsh or unjust
treatment;
b) The RRA misinterpreted the
first limb of the s 47(3) test by treating
separation from Mr Zanzoul's children as going to a finding in his
favour on the first limb of the test when the RRA did not find his
separation from his children had had a damaging effect on them;
c) The
RRA erred by giving weight to issues of Mr Zanzoul's mental
health when assessing them under the first limb of the
s 47(3) test; and
d) The RRA misinterpreted the s 47(3) test by considering humanitarian
factors considered
under the first limb again on the second limb.
[15] This was not the order as pleaded by the respondent, but is instead the logical
sequence. Specifically, since they all refer to the same issue, I intend to deal with
the first three grounds together.
[16]
One matter that was not before the RRA was an argument raised in the appeal
to the effect that various branches of the New Zealand
Government have been
responsible for publication via the internet of the outcome of criminal proceedings
against Mr Zanzoul, which
is then available to the Syrian authorities. Those reports
include reference to claims by Mr Zanzoul of harassment and of the potential
for his
ill-treatment if returned to Syria. Having regard to the internationally recognised
abuse of human rights in Syria, it was
argued that publication of these reports leads
to a reasonable fear on Mr Zanzoul's part of cruel and inhumane treatment should he
be forcibly returned to Syria. The point was first raised in a third set of submissions
filed on 15 January 2009 on terms:
Given the nature of the appeal point now raised being that the NZ
Government have now inadvertently caused a well founded
fear of
persecution or torture, any lateness of the appeal point will no doubt not be
raised.
It was not.
Leave
to argue judicial reviews
[17] Both applications for judicial review subsequently filed on behalf of
Mr Zanzoul were substantially
outside the time limit imposed under s 146A of the
Act which provides:
146A Special provisions relating to judicial review
of decisions under
this Act
(1) Any review proceedings in respect of a statutory power of decision
arising out of or under this Act must be commenced within 3 months
after the date of the decision,
unless the High Court decides that, by
reason of special circumstances, further time should be allowed.
[18]
The two judicial review applications were both filed on 24 April 2008. The
first was against the Chief Executive of the Department
of Labour in respect of the
acts and omissions of the RRA. That application pleaded five grounds, leading to a
single prayer for
relief by way of a quashing of the RRA's decision, and a referral
back to the RRA to reconsider a fresh appeal having regard to the
matters raised in
that application for judicial review. The causes of action may be summarised as
follows:
· alleging
failures to consider Mr Zanzoul's right to life in terms of s 8 of
BORA, and a failure to give reasons in terms of
s 27 of the BORA;
· alleging a failure to consider his right not to be subjected to
disproportionately
severe treatment in terms of s 9 of BORA;
· alleging a failure to undertake a proportionality analysis;
·
alleging a failure to take into account Articles 17 (the right to family life)
and 23(1) (protection of the family unit)
of the ICCPR; and
· alleging failure to take into account Article 3 of the Convention Against
Torture and Other
Cruel, Inhumane or Degrading Treatment or
Punishment (CAT).
[19] As analysed on behalf of the respondent, these grounds
largely overlapped
with grounds that were, by the hearing, also argued within the appeal. The fifth,
referring to CAT, appears the
only argument not invoked on the appeal.
[20] The second application for judicial review was brought against the Attorney-
General,
sued in respect of s 14(3) of the Crown Proceedings Act 1950 in relation to
acts and omissions alleged against the New Zealand Government in respect of
breaches of BORA, the common
law and ICCPR. Causes of action were pleaded
seeking declarations to the following effect:
· First, that s 4 of BORA is
inconsistent with the provisions of ICCPR;
· Second, that the failure by the New Zealand Government to enact ICCPR
is a lack of good faith or constitutes bad faith contrary to Article 2 of
ICCPR and articles 26 and 27 of the
Vienna Convention on the Law of
Treaties (1969);
· Third, that the respondent is estopped from pleading that
ICCPR is not a
part of New Zealand domestic law;
· Fourth, that s 10(1)(a) of the Legal Services Act 2000 is
inconsistent with
s 27 of the BORA, articles 2, 14 and 26 of the ICCPR and Magna Carta
and other due process
statues;
· Fifth, that prohibition of a grant of legal aid was a denial of access to the
Court;
·
Sixth and seventh, that the RSAA and RRA are not independent and
impartial tribunals (in the course of parallel challenges
to the terms of
appointment and arrangements of administration that apply to them); and
· Eighth, that both
the RSAA and RRA were not independent and impartial
by virtue of the provision for members of both Authorities to sit
concurrently on the other.
[21] Of these grounds, the respondent accepted that the first to fifth grounds in the
second
proceeding do not seek to challenge an exercise of a statutory power under
the Act, and therefore do not require leave. That absence
of exercise of a statutory
power does give rise to a different jurisdictional problem to which I will return in
due course. (See
paragraph [236] below.)
[22] Dealing then with the fifth claim in the first, and the sixth to eighth causes of
action in the
second application for judicial review, the "special circumstances"
required for leave need to be just that. The authorities
place emphasis on the
importance of the relatively short time limit that is imposed. The Court of Appeal
observed in Rajan v Minister
of Immigration [2004] NZAR 615:
[24] The term "special circumstances" is a commonly used phrase in the
New Zealand statute book. It requires circumstances
that are uncommon,
not commonplace, out of the ordinary, abnormal -- see Cortez Investments
Ltd v Olphert & Collins
[1984] 2 NZLR 434, in which this Court considered
the meaning of special circumstances in the context of s 151 of the Law
Practitioners
Act 1972. Whether there are special circumstances justifying
an extension of time must be assessed in the context of the legislation
involved. The Immigration Act confers rights of appeal in respect of
decisions relating to residence, revocation of
residence, removal and
deportation. However, strict time limits are placed on such appeals. The
s 146A time limit for
the filing of judicial review proceedings must be
interpreted in that context. This means that the discretion to extend time
should not be exercised too readily and very rarely if the delay is long. The
Rajans' application was filed one month
late and thus would require an
extension of one-third of the time limit. In the context of the Immigration
Act this
cannot necessarily be seen as a short delay.
[23] When initially proposed, the new s 146A provided for an even tighter time
limit
of 28 days. The report to the House on the Immigration Amendment Bill 1998
by the Social Services Committee commented:
The
rationale for placing a restriction on the time limit for judicial review
was to ensure that judicial review was not being
used to delay immigration
processes. It is, however, recognised that 28 days may restrict a person's
ability to lodge
judicial review proceedings, especially if the lodgement of
judicial review may depend on the results of an Official Information
Act
request.
[24] As a consequence, the time limit was set at three months, but the rationale
clearly remains, and is to
be respected.
[25] In the present case, the judicial review proceedings were commenced seven
months and 24 days out of time in
relation to the RRA decision, and two years and
10 months out of time in respect of the RSAA decision.
[26] Submissions opposing
the grant of leave cited numerous decisions
considering the granting of leave. Those cases to an extent all depend on their own
facts,
but there is a consistent focus on the length of delay relative to the period of
three months permitted for commencement of judicial
review proceedings. For
instance, in Rajan a one month delay, which required an extension of one third of the
statutory time limit,
was treated as `not a short delay'. Generally, delays for greater
than the period permitted (ie a further three months) tend to be
characterised as
`long' or `very long', tending to support a conclusion that leave should be declined.
An observation by Allan J
in Kesonsung v Minister of Immigration HC AK CIV-
2006-404-1597 22 September 2006 that "...a long delay will ordinarily preclude
the
grant of leave in any circumstances" was coupled with the notion that where there
has been a substantial period of delay relative
to the three month period permitted for
filing such proceedings, virtually no circumstances will be sufficiently "special" to
warrant
the grant of leave.
[27] In the present case, the impact of the addition of the judicial review
proceedings to the appeal in
terms of delaying a resolution can be seen in two ways.
Mr Ellis claimed that Mr Zanzoul's counsel had worked sensibly to combine
the
issues, that the combined proceedings had been progressed reasonably promptly, and
that there had been no attempt to prolong
challenges brought on Mr Zanzoul's behalf
such as by awaiting the outcome of the appeal before attempting judicial review.
[28]
On the other hand, the appeal was commenced in June 2007, and would
ordinarily have followed the appropriate track for appeals
in the Wellington
Registry, which leads to a hearing in substantially less than the 22 months it has
taken to bring the combined
proceedings on for hearing. Accordingly, for reasons
including those I describe in the following paragraphs, the addition of the
applications for judicial review have materially delayed the course that might
reasonably have been expected for the appeal on its own.
[29] Mr Ellis applied for and was granted
the appointment of a Full Court to hear
the appeal, and then in April 2008 sought adjournment of the appeal on grounds
including
the intention to commence judicial review proceedings in relation to the
lawfulness of the RRA's decision. The adjournment was granted,
despite obvious
concerns at delay. The Memorandum of Gendall and Clifford JJ recorded that
further significant delay was not warranted.
[30] By July 2008, Mr Ellis had conveyed to the Court the view that the then
allocated two day hearing would be insufficient,
and that seven hearing days would
be required. The Crown accepted that a two-day hearing would not be sufficient to
deal with all
the matters that had been raised. Logistical difficulties in being able to
convene a Full Court for seven sitting days was part of
the reason for reconsideration
by the then Executive Judge, Wild J, of the appropriateness of allocating a Full Court
to hear the
proceedings. In a Minute issued on 5 August 2008, His Honour directed
that the three sets of proceedings were to be heard together
before a single Judge
rather than by a Full Court.
[31] Subsequently, the matter has been heard before me. Ultimately, five sitting
days were required to hear very full argument (the Court and Mr Ellis were both
unable to continue with the hearing on the afternoon
of Wednesday, 29 April 2009
and the hearing concluded towards the end of the morning of Monday, 4 May). In
one sense therefore the
existence of the judicial review proceedings has already
materially delayed the determination that might otherwise have been expected
of the
appeal if considered on its own. On the other hand, that delay has now all been
incurred and, in the circumstances that ensued,
determination of the combined
proceedings including the review causes of action for which leave is required should
only be delayed
to a moderate extent beyond the period that would reasonably be
required to determine the balance of the arguments, if the additional
grounds are
excluded.
[32] What is clearly relevant is the extent of the delay prior to commencement of
the judicial review proceedings.
In both applications, this was substantially longer
than the period permitted for commencement of such proceedings: respectively
2.5
and 11 times longer than the time permitted.
[33] Mr Ellis relied on a number of factors as sufficiently "special circumstances"
to warrant a grant of leave. Perhaps most emphasis was placed on the lack of
availability of legal aid for persons in Mr Zanzoul's
position which, apart from being
wrong and in breach of the rights claimed for him, was said to produce an
"inequality of arms" that
justifies much longer time being taken than the three
months permitted by s 146A. In addition to that, Mr Ellis sought recognition
of his
standing as a "complete novice" in relation to immigration law, rendering him
"unfamiliar with procedural niceties". He acknowledged
that some of the points
sought to be argued had only occurred to him after considering the respondent's
submissions on the appeal.
He also characterised some of his arguments as raising
systemic problems of importance, and other arguments being of significant
importance so that the public interest warranted the full gamut of the arguments
being heard and determined by the Court. As they
were developed, some of his
arguments and those advanced by Mr Shaw amounted to pleas for greater
recognition of precepts of human
rights. Many of the declarations sought were using
Mr Zanzoul's predicament as a vehicle for challenges that counsel appeared
enthusiastic
to run on a much wider front.
[34] The relative inexperience of counsel in this area of law, or indeed mistakes as
to the time
limits or other errors by counsel, have not been recognised in this context
as constituting a "special circumstances". In any event,
as was pointed out for the
respondent, when the appeal was commenced, the solicitor previously acting as
counsel was one highly experienced in
immigration proceedings, who it can safely
be assumed was thoroughly familiar with matters such as the time limit in s 146A.
[35]
Nor is the "inequality of arms" a factor giving this case any "special
circumstance". The exclusion of persons unlawfully in
New Zealand from an
entitlement to legal aid under s 10(1)(a) of the Legal Services Act is a matter of
legislative policy. It is
illogical to recognise Parliament's intention to confine
judicial reviews in such cases to a period of three months from the relevant
Tribunal
decision, where persons in Mr Zanzoul's position do not have access to legal aid, and
then undermine that intention by treating
the absence of legal aid as "special
circumstances" justifying an extension of the strict time limit imposed by s 146A.
[36]
I do not see the fact that many of the judicial review causes of action overlap
with similar points in the appeal as a "special circumstances".
Mr Ellis was allowed
liberal extensions to what had been pleaded in the appeal, and such commonality of
content is not a situation
to which the leave provision can apply in a positive way. If
anything, this counts against a grant of leave. Duplication is to be
avoided, and all
matters properly raised as questions of law on which the RRA is alleged to have
erred should be advanced within
an appeal.
[37] Accordingly, before coming to any consideration of the merits, I am satisfied
that the length of the delays,
and the absence of a compelling, relevant explanation
for them, mean that the periods of delay here disentitle the applicant to the
leave
needed under s 146A. Leave is accordingly declined. In practical terms, this only
excludes the last of the grounds in the first
application for judicial review
(summarised in [18] above) because the arguments raised in the first four grounds
were able to be
grafted onto the grounds for appeal, when the latter were liberally
construed. On the second application for judicial review, only
the sixth to eighth
grounds related to the exercise of statutory powers under the Act, so it is those that
are excluded from that
proceeding (see [19] and [20] above). (The last cause of
action in the first, and the sixth to eighth causes of action in the second
application
for judicial review, are hereafter referred to as `the excluded claims').
[38] There is an inefficiency inherent
in hearing the essence of the argument
before deciding whether the merits of it justify a grant of leave. Accordingly, the
authorities
tend to focus on the relative length of the delay and the strength of the
reasons justifying the delay before embarking on even a
preliminary assessment of
the potential merits: see eg Jaing v Chief Executive Officer of the Department of
Labour HC AK CIV-2005-404-967
28 April 2005 Harrison J, and Yu & Cha v Chief
Executive, Department of Labour HC AK CIV-2006-404-5702 13 November 2006,
Winkelmann
J, which followed the same approach as Jaing. Accordingly, the
relative strength of the merits sought to be argued in
an application for judicial
review that is brought out of time should not automatically be considered when
assessing a grant of leave,
and only in a marginal case will the perceived strength of
the merits tip the scales in favour of granting leave.
[39] I had
anticipated from the terms of written submissions that counsel for the
respondent would resist any argument on the additional matters
raised by the judicial
review proceedings before an entitlement to leave had been made out. However, at
the hearing, Mr McCarthy
conceded that it was not practicable in the particular
circumstances of these proceedings to insist on that strict separation. Accordingly
the respondent did not oppose Mr Ellis's wish to present arguments in a sequence
that substantially intermingled the arguments relevant
to the appeal, and the
additional matters only relevant to the additional challenges raised in the applications
for judicial review.
[40] Given that
absence of opposition, I allowed Mr Ellis to develop his argument
in his preferred way. This involved Messrs Ellis and Shaw speaking
to the content
of four sets of submissions running to some 231 pages, together with references to
parts of three volumes of authorities
filed before the hearing, and a further
37 references tendered in the course of the argument.
[41] I have therefore heard all
that could possibly be put in support of all the
issues. In the event that I am wrong to decline leave under s 146A without having
regard to the merits, I am in a position to make a finding as to the prospects of any
merit in the excluded claims adding weight
to the special circumstances entitling
Mr Zanzoul to leave notwithstanding the substantial periods of delay beyond the
time limit.
I am satisfied that there is no material prospect of merit in the excluded
claims that would alter the evaluation of special circumstances
for granting leave.
Factual background
[42] In traversing the factual background, I have relied primarily on a summary of
the
substantial factual material available from files maintained by the New Zealand
Immigration Service, as included in the submissions
for the respondents. No
challenge was raised to the accuracy of it.
[43] Mr Zanzoul is presently 44 years old. He
was born in Syria and left that
country in 1990 on a valid Syrian passport, entering Cyprus on a tourist visa. He
overstayed that
visa and worked illegally until being deported back to Syria in 1992.
Shortly after that, he left Syria again and entered Turkey
legally, but then illegally
walked across the border into Greece and worked illegally in Greece until some time
in 1994.
[44]
Sometime prior to July 1994, Mr Zanzoul travelled to Denmark and procured
a false Danish passport in the name of Janis Nikos Stavros.
He discarded his valid
Syrian passport at that time, and on 6 July 1994 illegally entered New Zealand,
relying on the false Danish
passport. Once in New Zealand, he applied for, and was
issued, a visitor visa for a one month stay in Australia. He did that using
the Danish
passport and relied on the visa in the name of Stavros to enter Australia on 15 July
1994. He then obtained further visitor
visas entitling him to stay in Australia until
15 May 1995. During this period he was working illegally as a tiler.
[45] On 15
May 1995, Mr Zanzoul, still using the name Stavros, applied for a
protection visa in Australia. Still using the Stavros identity,
he married an Australian
citizen, Martha Theofanedes in August 1995. In November 1995, his application for
a protection visa was
rejected.
[46] In April 1996, the first of Mr and Mrs Zanzoul's children was born in
Australia, registered as Yasmine Janis Stavros.
In July 1996, Mr Zanzoul applied for
a resident's visa on the basis of his marriage to an Australian citizen, and was
granted a bridging
visa. The application was still in the name of Stavros and was
supported by false documentation.
[47] In July 1998, the second
of the couple's children was born in Australia, again
registered in the name of Stavros. In September 1998, the application
for a
resident's visa was refused on the ground that it could not be a valid application
because Mr Zanzoul had previously been refused
a protection visa.
[48] From September 1998 to October 2001, Mr Zanzoul pursued a number of
attempts to obtain a resident's
visa or a protection visa, remaining for some of the
period lawfully pursuant to bridging visas. In October 1999 a third child was
born,
and in June 2001 new birth certificates issued for all three children, changing the
family name to Zanzoul from Stavros. Various
of his initiatives to obtain a visa
were pursued to the appropriate Administrative Tribunals in Australia, and the
course of those
proceedings was also the subject of consideration by the Federal
Court.
[49] On 27 October 2001, Mr Zanzoul, together with his wife and three children,
left Australia
and went to Syria.
[50] In March 2002, Mr Zanzoul made three trips to Lebanon from Syria, on each
occasion promptly returning
to Syria and using a valid Syrian passport. Then in
April 2002, Mr Zanzoul and his family travelled to Bangkok, Thailand where he
applied to the New Zealand Immigration Service for a visitor visa that would entitle
him to travel to New Zealand. That application
was declined as the Immigration
Service was not satisfied that Mr Zanzoul was a genuine visitor. So the Zanzoul
family left Thailand,
returning to Syria. In May 2002, Mr Zanzoul made application
in person at the Australian Embassy in Beirut for a permanent Australian
resident
visa, but that application was declined.
[51] In March 2003, Mr Zanzoul had a false Australian passport made in Lebanon,
utilising his son's previous Australian passport issued in the name of Stavros, but
switching his own photograph and substituting
his own details for those of his son.
[52] In March 2004, Mr Zanzoul left Syria using a valid Syrian passport, and
travelled
to Bangkok with his son. There he obtained a one-way ticket to Auckland
and checked in for the flight using his false Australian
passport. On arrival in
Auckland, he presented his valid Syrian passport, claimed refugee status and
surrendered the false Australian
passport. His wife and two daughters had returned
to Australia in April 2003, but they joined him in New Zealand the same day as
he
arrived in March 2004.
[53] On arrival in New Zealand, Mr Zanzoul was granted a visitor permit valid for
four months, and
shortly after his arrival was also issued with a work permit that was
to expire after six months. He was interviewed in respect of
his claim to refugee
status in April 2004. Then he and his wife separated in August 2004. By the time
Mr Zanzoul obtained an order
from the Family Court preventing the removal of his
children from New Zealand at the end of August 2004, Mrs Zanzoul and the children
had already returned to Australia. Mr Zanzoul applied for a further work permit at
the end of September 2004, but that was declined
in early October 2004. Later in
October 2004, he applied for a visitor permit pending the outcome of a Refugee
Status Branch decision
on his claim to refugee status. However, the refugee status
application was declined at the end of October, and he subsequently appealed
to the
RSAA.
[54] In February 2005, Mr Zanzoul pursued an application in the Family Court of
Australia seeking the return of
his children, and orders to that effect were made in
March 2005. It appears that Mrs Zanzoul and the children returned to New Zealand
in May 2005, Mr Zanzoul having been granted a further temporary permit to be in
New Zealand on 15 April 2005, and due to expire on
15 October 2005.
[55] The appeal before the RSAA was heard in early May and dismissed in June
2005. After a Family Court hearing
in New Zealand in June 2005 resulted in interim
orders concerning care of the children, Mr and Mrs Zanzoul resumed living together
with all three children.
[56] However, in July 2005, the New Zealand Immigration Service revoked
Mr Zanzoul's temporary permit,
and in September 2005 Mr Zanzoul appealed
against removal from New Zealand. In December 2005, he pleaded guilty to a
charge of having
a false passport. He was subsequently committed to the High Court
for sentence on false passport charges, and he was sentenced in
August 2006 to a
term of 15 months' imprisonment. In the meantime, Mrs Zanzoul applied for a
custody order entitling her to relocate
to Australia with the children, and that was
granted on terms recognising Mr Zanzoul's right to have periodic access to the
children.
Mrs Zanzoul and the children returned to Australia in April 2006.
[57] In October 2006, Mr Zanzoul pursued an appeal against
his conviction and
sentence, but those appeals were dismissed in December 2006. He has subsequently
pursued an application for leave to appeal the Court of
Appeal decisions in the
Supreme Court, but leave was declined. He was released from prison in March 2007
and the decision of the
RRA, which had apparently been deferred pending his
release, was delivered in May 2007, dismissing his appeal from the removal order.
Terms of RRA decision
[58] The RRA treated Mr Zanzoul's appeal as motivated by his wish to remain in
New Zealand to retain
access to his children who resided in Australia. The prospects
of access, at least until the children were adults, would be extremely
remote if he
was in Syria. The RRA reviewed the grounds relied on by the RSAA for confirming
the decision that he not be accepted
as a refugee. The RRA treated the primary basis
for the appeal before it as Mr Zanzoul's right to remain in contact with his children,
and the children's right to know him as their father.
[59] The RRA reviewed materials that could be seen as supportive of
arrangements
allowing him to have access to the children, addressing his skills as a
tiler, plasterer and bricklayer, and various materials arising
in proceedings in the
New Zealand Family Court as well as various proceedings in Australia. The
New Zealand Family Court
proceedings had resulted in orders that the day-to-day
care of the children was to be the exclusive responsibility of Mrs Zanzoul
in
Australia. Mr Zanzoul was to have contact with the children for at least one week
during the April and September school holidays,
and two weeks at Christmas, with
the parents to contribute equally to the airfares of the children and Mrs Zanzoul as
she would need
to accompany the children on their visits to New Zealand. In
addition, those orders provided for three telephone calls
from the children to
Mr Zanzoul every seven days, and allowed daily internet contact. A March 2006
assessment by counsel for the
children had recorded the children's wish at that time
to have unsupervised contact with their father, and recorded the opinion that
they
would be safe with him during such contact. The judgment noted the observation of
the Family Court Judge that there was considerable
evidence pointing to Mr Zanzoul
placing intolerable pressure on the children.
[60] The statutory criteria under s 47(3) of the
Act were set out at [2] above. The
RRA purported to apply the approach to this section as described by the Court of
Appeal in Rajendra
Patel v Removal Review Authority and anor [2000] NZAR 200
where the Court commented in relation to the predecessor provision in substantially
similar terms:
Section 63B appeals start
from the premise that the appellants are in
New Zealand unlawfully and are seeking an exemption. The stringent
statutory
wording, "exceptional circumstances of a humanitarian nature
unjust or unduly harsh", using strong words imposes a stern test.
In its
natural usage, "exceptional circumstances" sets a high threshold necessarily
involving questions of fact and
degree. Associated in the test under the
paragraph is that it be "unjust or unduly harsh" to remove on that account. It
is a composite test and the whole picture is to be viewed, both circumstances
and effects; and as part of that whole
picture, the effects on others as well as
the person removed may require consideration (Nikoo v Removal Review
Authority
[1994] NZAR 509, 519).
[61] The RRA treated the first limb of the statutory test (exceptional humanitarian
circumstances sufficient to make it
unjust or unduly harsh to remove him from
New Zealand) as setting a "high threshold".
[62] The RRA considered aspirations of
reuniting with his wife as being unlikely,
but that the best interests of the children were a primary consideration for the RRA.
There was a positive finding that it would be in the best interests of the children to
have contact with their father, not just by
telephone and email but also by physical
direct contact. It was recognised that if Mr Zanzoul was removed that would
effectively
sever direct contact between him and his children which was not seen as
being in the interests of either the children or Mr Zanzoul.
It could not be said that
the appellant was a bad father or a negative influence on his children.
[63] Mr Zanzoul's mental health
was also considered in assessing humanitarian
circumstances, in the following terms:
[62] There is another factor relevant
to the appellant's humanitarian
circumstances. There is evidence, not only from the appellant's many
supporters
but also medical evidence, that he has suffered stress and
depression from separation with his children and anxiety about
losing them
if he is removed from New Zealand. He has symptoms of a major
depressive illness and has been on sleeping
and anti-depressive medication.
This is a relevant though not determining factor.
[64] The RRA then concluded on humanitarian
circumstances in the following
terms:
[63] The Authority finds that the removal of the appellant from
New Zealand
amounts to exceptional circumstances of a humanitarian nature
that would be unjust or unduly harsh for the children and
for the appellant
himself.
[65] The RRA then moved to the second limb of the test in s 47(3) describing its
analysis
on public interest in the following terms:
[64] The primary issue in this appeal is whether the appellant meets the
second limb of the statutory test, namely whether he has established that it
would not in all the circumstances
be contrary to the public interest to allow
him to remain in New Zealand.
[66] The RRA reflected on the relative seriousness
of the criminal conviction, and
the circumstances in which it had arisen. It noted that there was no need for
Mr Zanzoul
to have used a false passport given that he had a valid Syrian passport
which he had used on numerous occasions. That circumstance
was different from
some successful claimants for refugee status who could not do otherwise than arrive
in New Zealand in reliance
on false documentation. The RRA also had regard to the
extent of his admitted previous travel on false documents, and the prolonged
use of
his false identity as a Greek Cypriot using the surname of Stavros. This deception
had persisted through the marriage of his
wife and the registration of the birth of
their three children over a period of years.
[67] The RRA also treated Mr Zanzoul's
untruthful evidence to judicial bodies
and the Family Court findings of domestic violence and harassment as factors,
relevant to
the public interest, in counting against Mr Zanzoul being permitted to
remain. Although notionally recognising that there has been
a breach of a Court
order to pay $250 per week towards the support of his family, the terms of the
RRA's judgment sensibly accept
that he had had little realistic prospect of paying
that support.
[68] Then the RRA reflected on the humanitarian circumstances
that had been
taken into account under the first limb, recognising them as favourable factors in the
consideration of the public
interest under the second limb of the section. The RRA's
conclusion on the second limb was reflected in the following terms:
[105] The Authority has considered the effect of removal of him and the
children but finds, in light of his criminal conviction, his propensity to lie to
immigration and judicial officers in Australia and New Zealand, the use of
fake passports and assumption of a false identity
in Australia for a number of
years, lying to his wife, his treatment of his wife (including at least one
assault) and
his oldest daughter and his breach of court orders, that it has not
been established that it would not be contrary to the
public interest to allow
him to remain in New Zealand. Indeed, the Authority finds that it would be
contrary to the
public interest to allow him to remain in New Zealand.
Grounds argued
[69] Attempting to synthesise the scope of all grounds
raised on both the appeal
and the cross-appeal invites their consideration in an order different from those
pleaded and argued. The
range of arguments can be distilled in the following way.
Concerns as to process
[70] First, process concerns as to the manner
in which the appeal hearing was
conducted. The primary argument on this challenge was the failure by the RRA to
disclose receipt
of prejudicial information. On the basis of that and other alleged
deficiencies, it was argued that the RRA failed to afford a fair
hearing to
Mr Zanzoul, contrary to s 27 of BORA and the common law. This deals with
grounds (e) and (i) of the appeal as summarised
in paragraph [8] above.
Errors of law in RRA's approach
[71] A second group of arguments related to alleged errors of law in
the approach
of the RRA to the s 47(3) test.
[72] The respondent's cross-appeal included an argument that the RRA erred in
what
it considered might constitute unduly harsh or unjust treatment under the first
limb of s 47(3), to the extent that separation from
the children might be sufficient.
Further, the respondent argued it was an error to rely on the consequences of
separation from the
children in the absence of any finding that the separation was
damaging to the children. In addition, the respondent argued that
the RRA erred in
the relevance it attributed to humanitarian factors, when assessing the public interest
on the second limb of the
test under s 47(3).
[73] It was argued for Mr Zanzoul that the RRA adopted the wrong approach to
the test in s 47(3) of the Act,
and that it was an error of law to make a positive
finding that allowing him to remain in New Zealand would be contrary to the public
interest in terms of the test under the second limb of s 47(3). This raises grounds (a)
and (b) of the appeal.
[74] It was also
argued for Mr Zanzoul that an error of law arose on the RRA's
rejection of uncontested evidence of the adverse mental health consequences,
and
also that the RRA erred in failing to give adequate reasons for that rejection. The
complementary argument in the cross-appeal
was to question the weight that might
be given to issues going to Mr Zanzoul's mental health.
Misconceived relevant and irrelevant
considerations
[75] Next, there was a series of arguments at the alleged failures of the RRA to
have regard to relevant influences
on its determination, in particular the provisions of
ss 8, 9 and 27 of BORA, and articles 17 and 23(1) of ICCPR.
[76] Further,
it was argued in the appeal that the RRA was obliged to undertake an
assessment as to the proportionality of the consequences, but
failed to do so.
[77] Finally, within the scope of appeal arguments, there were criticisms that the
RRA had failed to have regard
to relevant considerations such as that the RRA
should have recognised and had regard to the positive contribution Mr Zanzoul could
make to New Zealand in the future, and that there was no threat of future criminality
because all of his offending had been in respect
of attempts to stay in New Zealand,
and were in the past. Also, that the RRA had taken into account irrelevant factors
such as a
need to exclude Mr Zanzoul to uphold the integrity of the New Zealand
immigration system.
Process
Failure to disclose prejudicial information
[78] This first head
of challenge in the appeal was an alleged deficiency in the
process adopted by the RRA because of its failure to disclose to Mr Zanzoul
the
receipt of information potentially prejudicial to him. On disclosure of the RRA's
files to Mr Zanzoul's advisers after the present
appeal had been lodged, the advisers
discovered correspondence from an immigration officer, who had been having
dealings with Mrs
Zanzoul, to the Secretariat of the RRA enclosing a confidential
statement made by Mrs Zanzoul to that Immigration Officer. It appears
the essence
of the communication was that Mrs Zanzoul was supporting her husband's appeal to
the RRA under duress. The covering communication
that has been disclosed warned
that the information conveyed was highly confidential, and could not be discussed
with Mr Zanzoul
or his representatives.
[79] Ordinarily, knowledge on the part of the decision-maker of any information
potentially prejudicial
to a party to proceedings before it that is not shared with that
party, will amount to a serious flaw of any minimum procedural requirements
for a
fair hearing. Basic tenets of natural justice require a party to know the case against
him or her in sufficient detail to mount
an answer, as well as affording an adequate
opportunity to do that.
[80] However, s 50 of the Act somewhat confines that usual
approach at common
law to take account of the somewhat unusual circumstances in which appeals to the
RRA might arise. Subsections
(4) to (7) of s 50 provide as follows:
50 Procedure in appeals
...
(4) In determining the appeal,
the Authority--
(a) May seek and receive such information as it thinks fit, and
consider
information from any source; but
(b) May not consider any information which relates to matters
arising after the date the appeal was lodged unless it is
satisfied that there are exceptional circumstances
that justify
the consideration of such matters.
(5) The Authority must disclose to the appellant
any material or
information that the Authority proposes to take into account in
determining the appeal
if that material or information--
(a) Is or may be prejudicial to the appellant; and
(b) Is
material lodged with the Authority by the chief executive,
or is information obtained by the Authority from
a source
other than the appellant.
(6) The Authority must give the appellant an opportunity to rebut
or
comment on any material or information disclosed under subsection
(5) within such reasonable time
as the Authority specifies.
(7) Subsections (5) and (6) do not require the Authority to disclose to
the
appellant any material or information whose disclosure would be
likely to endanger the safety of any person, but the
Authority must
notify the appellant of the fact of any such non-disclosure.
[81] Subsections (5) and (6) reflect
a basic requirement of natural justice in
administrative law, as it applies to any information that the RRA proposes to take
into
account in determining an appeal, with the exception of the subset of such
information provided for in subs (7). That limited exception
recognises that where
disclosure would be likely to endanger the safety of any person, the information
itself need not be conveyed
to the appellant. The RRA must nonetheless notify the
appellant of the fact that the RRA has such information which it has decided
not to
disclose because of the likelihood of endangering the safety of any person. Before it
comes within subs (7), the information
must be information that the RRA proposes
to take into account in determining the appeal.
[82] In defending the non-disclosure in this case, it was argued
for the respondent,
first, that there was no evidence that the information had been conveyed to the
member of the RRA making the
decision. Secondly, it was argued that the Court
could be satisfied the information was not taken into account in determining the
appeal because of the existence of other information, which had been disclosed to
Mr Zanzoul and which would justify the relevant
passage in the decision of the RRA
that might otherwise have depended on the non-disclosed information.
[83] As to the first
of these points, I accept Mr Ellis's submission that it is
impossible for the appellant to prove positively that the information
was conveyed to
the RRA member responsible for the decision, and that once a clear inference arises
that it would have been available
to the RRA member, the Court should draw the
inference that it was considered, until that inference is refuted.
[84] On the second
point, reliance was placed on two High Court decisions in
which the Court analysed the non-disclosed information and was satisfied
that the
information had not ultimately been relevant to the RRA's decision, so that the
statutory context did not require disclosure.
In the first of these, Faifai v Chief
Executive of the Department of Labour HC WN AP217/99 14 June 2000 Ronald
Young J, the finding
that the previous version of s 50(5) had not been breached was
addressed in the following terms:
[52] Judges are normally
reluctant to dismiss the significance of a failure
to pass on to a party to administrative proceedings the existence of
prejudicial information about that party on the basis that the decision-maker,
explicitly or by implication, has asserted
that the non-disclosed information
was immaterial. But there is a statutory context in which the present case
must
be decided. If I were to allow the appeal on the basis urged on me by
Mr Petris, it would, in effect, mean that the Removal
Review Authority
would be required to disclose to appellants all information which was
potentially prejudicial irrespective
of whether the Authority intended to rely
on it. So, allowing the appeal on this basis would be tantamount to me
repealing
s 63D (5)(c) by judicial decree. It would also be inconsistent with
the nature of the appeal contemplated by the statute which
is required to be
determined "with all reasonable speed". Requiring the Removal Review
Authority to make available
for comment information which it does not
intend to take into account would cut across that obligation.
[85] On the facts
in that case, the Judge was satisfied that the non-disclosed
information had not been relied upon.
[86] A similar approach applied
in Jeong v Attorney-General HC WN AP58/03
15 July 2003 Ellen France J. That case included the following reasoning:
[53]
I have carefully considered this matter because the information in
issue is potentially relevant and is potentially prejudicial.
However, looking
at s 50(5) in its context, it does confine the notion of disclosure. It is not
enough that the information
is prejudicial but it must also be information that
the RRA proposes to take into account in determining the appeal.
Accordingly, the section is more restricted than is contended for by the
appellants. The appellants' interpretation would
give no meaning to the
word "propose" and nor to the requirement that the information be
something to be taken into
account "in determining" the appeal.
[54] In the end I agree with the respondent that, reading the decision as a
whole, there is no focus or emphasis and so no taking into account of the
relevant information. [...]
[87] The effect
of those decisions is to treat s 50 as entitling the RRA to receive
information from any source that is not necessarily required to be disclosed to the
appellant.
However, the obligation to disclose does arise if the RRA proposes to
take the information into account. Usually that obligation
can only be discharged by
copying the information, except in circumstances where the RRA proposes to take
into account information,
the disclosure of which would endanger the safety of any
person. In those circumstances, the limited disclosure required by subs
(7) would
apply, so that at least the appellant knows the character of the information, although
not its source.
[88] Here, there
was a credible basis for arguing that the RRA did not have to take
into account the non-disclosed information, because the part of
its judgment relevant
to the non-disclosed information was justified by other material before the RRA.
[89] The most specific
observation in the RRA's decision that refers to pressure
Mr Zanzoul may have imposed on his wife is in the concluding sentence of
paragraph [101] of the decision which stated:
The appellant, it must be remembered, has a history of lying to achieve his
goal of permanent residence outside Syria and has sought to manipulate
others, including the oldest child and no doubt
his wife along the path to
reaching that goal.
[90] Ms Griffin took me to a substantial number of items that were among
the
disclosed materials before the RRA, many of which she submitted were sufficient on
their own, and certainly sufficient cumulatively,
to justify the finding of
manipulation of Mrs Zanzoul that is reflected in paragraph [101].
[91] Ms Griffin suggested that paragraph
[51] of the RRA's decision is also
relevant to an assessment of whether the RRA had regard to the non-disclosed
information. That
paragraph stated:
[51] While he apparently harbours the prospect of reuniting with his wife,
that would seem most
unlikely given the evidence before the Family Court
and her residence in another country. There is no evidence before the
Authority of any realistic prospect of reconciliation. According to counsel,
the appellant's wife supports his residence
here so he can have regular
ongoing contact with the children, but there is no evidence of this from her
and given
the history of conflict between them, this contention is not
accepted.
[92] One point arising from that part of the RRA
reasoning is that, given its
demonstration of good faith in scrupulously disclosing to Mr Zanzoul's advisers all
the other material
that was likely to be relied upon, the absence of acknowledgement
of the non-disclosed material on this aspect of the reasoning supports
an inference
that indeed the RRA did not have regard to it. Arguably, if the RRA did have regard
to it, it would have referred to
the communication from Mrs Zanzoul in positive
terms as evidence contradicting the submission on behalf of Mr Zanzoul that his wife
supported his application to remain in New Zealand.
[93] Although I recognise that as a credible argument, I am not prepared
to rely on
the absence of explicit reference in paragraph [51] as establishing that the RRA
positively did not have regard to the
non-disclosed information.
[94] On the point that other evidence, disclosed and available to Mr Zanzoul, was
more than sufficient
to justify the finding in paragraph [101] of the RRA's decision,
Ms Griffin pointed to the following.
a) A review of
the history of the relationship between Mr and
Mrs Zanzoul in the decision of the Australian Administrative Appeals
Tribunal dated 20 February 2004. That referred, among other things,
to Mrs Zanzoul saying that Mr Zanzoul
had told her that he was from
Cyprus, that he spoke Greek to her parents when they first met, and
that
they accepted that he was a Greek Cypriot. Mrs Zanzoul was
apparently at the time under the impression that Mr Zanzoul was in
the process of obtaining permanent
residence in Australia (paragraph
[25]). Further, Mr Zanzoul acknowledged that he did not tell
Mrs Zanzoul his real
name until after they were married, but said that
it was before their first child was born in April 1996. That apparently
did not bother Mrs Zanzoul but her parents were distressed when they
found out (paragraph [29]). The Australian Tribunal
found that
Mrs Zanzoul was indeed aware of his true identity before their first
child was born, and that she helped him
invent names for the false
Cypriot family whose details they included in his Australian visa
application, in reliance on
his status as her spouse (paragraphs [32],
[55] and 56]). In finding it "a most serious case of immigration
conduct and
abuse of Australia's migration system" (paragraph [61]),
the Australian Tribunal emphasised the extent of deception as to his
identity and his preparedness consistently and repeatedly to lie and
manipulate "the system" to achieve that end.
b)
The second source of information suggested as justifying the
paragraph [101] finding was the first decision delivered by the
Family
Court at Auckland on 7 March 2006. That determined an application
by Mrs Zanzoul for permission to take their children
to reside in
Australia, and for orders defining the extent of contact the children
were to have with Mr Zanzoul. Some of
the background to their
relationship was reviewed in terms consistent with the findings by the
Australian Administrative
Tribunal. The judgment records claims by
Mrs Zanzoul that Mr Zanzoul had been violent and domineering, and
that whilst
she lived alone with the children, they were regularly
exposed to conflict between her and Mr Zanzoul (paragraph [19]).
The judgment reviewed a quantity of evidence about domestic
violence, and violence shown by Mr Zanzoul towards their children,
plus Mrs Zanzoul's evidence that she feared Mr Zanzoul to an extent
that she slept with a portable security alarm next
to her. The Judge
concluded that Mr Zanzoul was violent towards Mrs Zanzoul and that,
contrary to an undertaking given
to the Court, he was still abusing,
harassing and intimidating her (paragraph [49]). The Judge was
satisfied that
while Mrs Zanzoul lived in New Zealand, she was likely
to be subjected "to ongoing pressure and threats from [Mr
Zanzoul]"
(paragraph [55]).
c) A third source identified by Ms Griffin was a second Family Court
decision delivered at Auckland by the same Judge on 16 March 2006.
That dealt with the issue of whether
the children would be safe in the
unsupervised care of Mr Zanzoul which was required by virtue of the
Judge's finding that Mr Zanzoul was violent towards Mrs Zanzoul.
The Judge found there to be intolerable pressure
on Mrs Zanzoul and
the children, attributable substantially to Mr Zanzoul's proceedings in
relation
to his attempts to remain in New Zealand. The Judge found
that there was evidence of continuing pressure by Mr Zanzoul
on
Mrs Zanzoul (paragraph [18]).
d) Fourthly, Ms Griffin drew attention to a 10 March 2006 Memorandum
to the Family Court from counsel appointed for the children. That
reported Mrs Zanzoul as saying that
Mr Zanzoul had persuaded her to
return to assist with his immigration status, and her feeling "controlled
and manipulated by Mr Zanzoul". The report also acknowledged a
denial by Mr Zanzoul that he had persuaded Mrs
Zanzoul to return to
assist with his immigration status.
[95] Ms Griffin's submission was that all of these sources cumulatively were more
than enough to warrant the finding in paragraph
[101]. The difficulty I have with
this submission is that none of these sources have a specific focus, or the
contemporaneous relevance
that would obviously be attributed to the recent and
highly relevant communication from Mrs Zanzoul. Even if those earlier sources
justified the finding, and might have focused the mind of the RRA in addressing the
prospect of manipulation, they would be given
a greater importance, and a tighter
focus, by the additional impact of what was communicated from Mrs Zanzoul before
the decision
was made. With respect to the RRA, the statutory exceptions to the
usual requirement for full and equal disclosure to both parties,
which were created by
s 50(5) to (7) of the Act, require a high standard of compliance to justify resort to the
exception. In these
circumstances, a relatively low threshold is appropriately applied
for Mr Zanzoul to make out the information as having been taken
into account by the
RRA in determining the appeal. I consider it more likely than not that some regard
was had to the undisclosed
information.
[96] Accordingly, I consider the factual context has this case falling on the
opposite side of the line from Faifai
and Jeong. The non-disclosed information was
highly material to a matter traversed in the RRA's decision and, without some form
of
positive disclaimer that it had been disregarded, the other evidence available to the
RRA and disclosed to Mr Zanzoul relevant to
this topic would have been given a
tighter focus and potentially greater relevance when the undisclosed information was
added to
it.
[97] I do appreciate the dilemma that this situation creates for the RRA. If it
considers that there are genuine grounds
to fear retribution by Mr Zanzoul if he
discovered that Mrs Zanzoul had conveyed to Immigration Service staff on a
confidential basis
that she was being pressured to support his case, then it would be
extremely difficult to give notice to Mr Zanzoul of the intention
to rely on such
information, without revealing the source and therefore destroying the confidence in
which the information was conveyed
in the first place. On the other hand, if the
RRA decided it was unnecessary to have any regard to such information conveyed
on a
confidential basis, it would be sufficient to acknowledge that other information
had been conveyed to the RRA which it was not in
a position to either disclose or
describe, leading the RRA to decide not to take that information into account in
determining the
appeal. In cases such as the present, that might still create some risk
that a person in Mr Zanzoul's position would speculate on
what such other
information was, and react adversely on the basis of a suspicion. Generally, and in
particular in this case, that
risk can be managed and substantially reduced by the lack
of specificity in an acknowledgement that the RRA has not taken undisclosed
information into account. In the absence of such a disclaimer, the materiality and
additional weight of such information that is
clearly relevant to the outcome
unfortunately leads to the prospect of the process being inadequate, relative to the
requirements
of natural justice as adopted in these cases by s 50 of the Act.
[98] Here, I consider the error sufficiently important to quash
the RRA's decision,
and direct reconsideration.
Well-founded fear of persecution
[99] Mr Ellis placed significant reliance
on an argument that injustice was caused
by requiring Mr Zanzoul's removal to Syria when he has a reasonable fear of
persecution
there. At the forefront of this was an unpleaded criticism that both the
executive and judicial branches of the New Zealand Government
have contributed to
breaches of Mr Zanzoul's human rights. The executive was at fault due to the
absence of formalised requirements
for suppression of personal details in any
criminal prosecution relating to immigration offences. The judicial branch was
complicit by adjudicating on such cases, and not initiating suppression
of his name.
These constraints were argued to be necessary because of the risks inherent in
publication for any would-be refugee
or migrant who is critical of the regime in the
country to which that person is likely to be returned.
[100] Mr Ellis contrasted
the appropriate procedures in place in all processes under
the Act that do provide for the suppression of the name and other details
likely to
identify a claimant for refugee status. Mr Ellis infers that those procedures are in
place because of a sensible appreciation
that, where an application fails, the
circumstances of the attempt to attain residence in New Zealand may of themselves
add to the
risk that that person is exposed to when returned to the jurisdiction from
which he or she has come.
[101] The Court proceedings,
the outcome of which identify Mr Zanzoul, relate to
his sentencing in the High Court at Auckland on 4 August 2006 to a term of
15
months' imprisonment for convictions on offences under the Act, and the
decision of the Court of Appeal dismissing appeals against
conviction and sentence
on 6 December 2006. Since the RRA decision, Mr Zanzoul sought leave to appeal
further to the Supreme Court
on 22 April 2008. For the first time he made an
application for name suppression which was dismissed by the Supreme Court on
9 May
2008. The Supreme Court went on to dismiss his application for leave on
10 June 2008. It was submitted that the outcome of all these
Court proceedings is
available via simple internet search and thus Mr Zanzoul's involvement in them is
widely available.
[102]
Mr Ellis originally submitted that so long as there was a risk that someone
attempting to remain in New Zealand as a refugee or migrant
might forcibly be
removed to another country, then a presumption that there was a prospect of ill-
treatment on forcible return to
another country was sufficient to impose an obligation
on either or both of the executive and the judiciary to take positive steps
to suppress
the person's name or other identifying details in relation to their involvement in
Court proceedings. Mr Ellis's proposition
requires the rejection as inadequate of the
usual entitlement to apply for suppression of name in criminal, or indeed civil,
proceedings
in the District Court and High Court.
[103] One of the propositions raised on behalf of the respondent against any such
obligation
was that there was no justification for an unqualified assumption that such
protection was warranted in every case, and that it could
never be warranted in light
of the presumption of open justice that is well-established in New Zealand. In
replying to this, I took
Mr Ellis to qualify the expectation he contended for, to some
presumptive recognition of an entitlement to name suppression. I was
certainly not
persuaded of any obligation that should be imputed either to the executive or the
judiciary, to pre-emptively recognise
a requirement to protect the identity of persons
in the position of Mr Zanzoul, in relation to their involvement in Court proceedings
in New Zealand. Fears of the risk of persecution in countries to which they may be
returned is not so standard a feature of the circumstances
of those appearing in
New Zealand Courts on matters arising under the Act that some special statutory
provision is required. Nor
is there a basis for expecting the judiciary to take
initiatives on name suppression.
[104] Persons in the position of Mr Zanzoul
can be expected to appreciate the
nature and extent of the risk they may be exposed to if the circumstances of their
involvement
in Court proceedings in New Zealand are published. The existing law
affords adequate grounds for them to seek name suppression. Where
justified,
suppression is routinely granted. There is no justification for a requirement that
would pass the initiative from the
person immediately affected by publication, to
some form of pre-emptive recognition of risk as a generality, so as to create an
obligation on
the New Zealand Government in any guise.
[105] Accordingly, however it is framed, the criticism of an absence of institutional
protection for Mr Zanzoul in relation to the publication of his involvement in Court
proceedings in New Zealand cannot succeed.
[106] In the course of his argument, Mr Ellis made an oral application for
suppression in these present proceedings of Mr Zanzoul's
name, and any details
leading to his identity. The Supreme Court has previously declined such an
application, essentially on the
well-settled basis that the Court will not order
suppression where it would be futile because the matter is already in the public
arena. That is the case here by virtue of the absence of suppression orders in relation
to the High Court sentencing, and the appeal
to the Court of Appeal.
[107] In the present circumstances, Mr Ellis argued that every additional reference
to Mr Zanzoul's involvement
in proceedings in New Zealand added incrementally to
the risk of his position in New Zealand coming to the attention of the Syrian
authorities. Unlike the usual situation where any first reference to a person's
involvement in criminal proceedings "lets the cat
out of the bag", in this case the
Court should do what it could to repair the harm done by prior publication, by
avoiding the prospect
of any further references that might trigger disclosure of
Mr Zanzoul's initiatives here by means of an internet search.
[108]
It may be that one reason for pursuing such an application for suppression, as
Mr Ellis did in the course of argument, was to reinforce
the relative seriousness
attributed to the risk of his plight becoming known to the Syrian authorities. This
minimises the impact
of arguments against Mr Ellis's imputation of an obligation on
the executive and the judiciary to anticipate the prospect of such
prejudice, and pre-
emptively suppress his name, by demonstrating that Mr Ellis was now doing all he
could to limit the "damage"
perceived as arising.
[109] It appears that the first four results of an internet search via Google using the
key word `Zanzoul'
refer to Mr Zanzoul's involvement in Court proceedings in
New Zealand. I am not persuaded that the notion of incremental levels
of harm is a
basis for distinguishing these circumstances from the usual approach adopted by the
Courts, namely that suppression
orders will not be made where it is futile to do so
because the subject matter is already in the public domain.
[110] Accordingly,
I am not prepared to make the suppression order requested by
Mr Ellis in relation to the current proceedings.
[111] On the issue
of the fear of persecution, that leaves the prospect of what would
amount to a new ground of exceptional humanitarian circumstances,
potentially
sufficient to justify permitting Mr Zanzoul to remain in New Zealand, if his
circumstances reflected in the extent of
information revealed by an internet search
now justify a well-founded fear that persecution would follow his removal to Syria.
[112] In reviewing the history of his concerns throughout his attempts to stay in
Australia and New Zealand, it does appear that
this point has gained prominence
latterly. Although it was accepted by the RSAA that Mr Zanzoul was previously
detained for a period
of some 21 days by Syrian civil intelligence services, since that
time he appears to have left and subsequently re-entered Syria
on numerous
occasions without attracting the attention of the authorities there. Immigration
authorities in both Australia
and New Zealand have tended to the view that he has
overstated the extent of any risk that he might be subjected to persecution or
ill
treatment on return to Syria.
[113] In its February 2004 decision, the Australian Administrative Appeals
Tribunal states that
Mr Zanzoul:
...acknowledged that he is not and was not a refugee but he allowed the
protection visa application to be made on his behalf. He lied when he
claimed in
the application that he would be "locked up in jail and tortured" if
he had to return to Syria...Mr Zanzoul said he was scared
of losing his wife
and kids. He was prepared to lie to prevent this happening.
[114] Arguments for Mr Zanzoul before the
RRA appear to be consistent with this
statement, with a focus on his concern to retain physical contact with his children,
and the
harsh consequences of his not being able to do so if returned to Syria. That
decision, delivered on 30 May 2007, does not make anything
of a fear on
Mr Zanzoul's part of persecution or ill treatment if returned to Syria.
[115] It is appropriate to assume that the
references to the Court proceedings on the
internet became available to anyone searching that source relatively soon after they
occurred.
In that event, there were at least a small number of references that could
be searched by the authorities in Syria at the time of
the RRA decision. Mr Ellis
suggested that the larger number of entries he claimed would now arise for anyone
doing an internet search
by reference to Mr Zanzoul's name increases the
justification, in relative terms, for a fear on his part that such a search would
be
undertaken by the Syrian authorities on his forced removal into Syria. Further, that
the circumstances of his attempts to resist
being returned to Syria would attract ill-
treatment at the hands of the Syrian authorities. Mr Ellis argued that assessment of
such
a fear is to be assessed, in part, subjectively by reflecting the particular
circumstances of concern to Mr Zanzoul, and in part
objectively by the context in
which they arise.
[116] Mr Ellis submitted that there was more than adequate evidence to justify
the
claim to a reasonable fear of persecution, that the Court was equipped to analyse and
recognise that fear, and that it constituted
grounds on which the decision of the RRA
could be reversed by this Court within the context of this appeal.
[117] In an affidavit
affirmed in April 2008, and filed in the first of the judicial
reviews, Mr Zanzoul states that the situation in Syria has changed
considerably since
June 2002, that Syria is a very cruel and frightening place for anyone who comes
under the scrutiny of the authorities
there, and that he believes that he would not get
through the airport safely if he was returned to Syria.
[118] Mr McCarthy submitted
for the respondent that the present appeal was not an
appropriate forum in which to recognise a ground that was not before the RRA,
as
constituting a ground for reversing the outcome. He submitted that, to the extent that
new circumstances had arisen which would
constitute a ground for overturning the
order for Mr Zanzoul's removal, this might constitute grounds for a direction for
reconsideration
of his position.
[119] I accept Mr McCarthy's point that refugee status officers are making
assessments on claims such as Mr Zanzoul's
all the time, that it is a relatively
specialised skill, and that the appropriate course is not for me to substitute my
opinion for
that of the specialist body, but rather to recognise the entitlement of
Mr Zanzoul to make a fresh application under s 129J of the
Act. A more
fundamental objection is that Mr Ellis was inviting fresh consideration of a ground
not before the RRA
at all, in reliance, at least in part, on material that was not before
the RRA. That would constitute a complete merits review,
not available to
Mr Zanzoul in an appeal on questions of law.
[120] Mr Ellis was wary of pursuing a fresh application under s
129J of the Act,
given the need to satisfy a refugee status officer that since the original determination
on his claim to refugee
status, circumstances in Mr Zanzoul's home country have
changed to such an extent that a further claim is based on significantly
different
grounds to the previous claim. It would be a matter entirely for the Immigration
Service, but the extent of information available via the internet
in Syria as a result of
the outcome of New Zealand Court proceedings being available via that medium
might be seen as contributing
to a change of circumstances "in Syria".
[121] I am accordingly not prepared to allow the appeal on terms that recognise
Mr Zanzoul's
entitlement to remain in New Zealand as a refugee, on account of the
way in which his fear of persecution in Syria is now argued
on his behalf by
Mr Ellis. I confirm that I indicated during argument that I saw nothing improper or
inappropriate in Mr Zanzoul
promptly pursuing an application for further
consideration of his claim to refugee status under s 129J of the Act. I also confirmed
that such an application did not need to await the issue of this judgment. Logically,
any such prospect should be exhausted before
a rehearing of Mr Zanzoul's appeal to
the RRA occurs.
RRA approach to s 47(3) flawed?
[122] The terms of s 47(3) are set out
in paragraph [2] above. In its decision, the
RRA applied the section to determine that there were exceptional circumstances
making
it unduly harsh or unjust to remove Mr Zanzoul, but also that it was not
satisfied that it would not be contrary to the public interest
to allow him to remain in
New Zealand. Both Mr Zanzoul and the respondent challenged the RRA's approach
to the section. I will deal
with them in the order in which they arise on an analysis of
the RRA's decision.
Separation of appellant from children does not
amount to exceptional circumstances
[123] The first, third and fourth grounds of cross-appeal by the respondent refer to
the RRA's
consideration of the relationship between Mr Zanzoul and his children,
and particularly disruption to that relationship, as constituting
exceptional
circumstances.
[124] First, the respondent argues that the mere fact that Mr Zanzoul would be
separated from his children
is insufficient to meet the first limb of the test in s 47(3).
Mr Zanzoul's three children live in Australia with their mother. The
Family Court
granted Mr Zanzoul internet access to the children three times a week, and physical
access four weeks a year when they
visit New Zealand during their school holidays,
accompanied by their mother.
[125] The RRA held that removal to Syria would prevent
any direct contact
between Mr Zanzoul and his children, because he is prevented from entering
Australia, and Mrs Zanzoul will not
allow them to enter Syria. The RRA's
conclusion on this point is found at [61] of its decision:
[61] While
the children live in a different country and do not appear to have
had direct contact with the father for about a year and
the contact ordered by
the Family Court is modest, it will no doubt be meaningful to both the
appellant and his children.
That severing of direct contact would not be in
the interests of the children or the appellant. Despite the Authority's grave
misgivings as to the appellant's character (see later), it could not be said that
the appellant is a bad father or
a negative influence on his children. [...]
[126] It was this conclusion, and the RRA's view on Mr Zanzoul's mental health
(which
the respondent also cross-appeals) that led to the RRA finding that the first
limb was satisfied. For completeness, however, it is
important to note that the RRA
made further findings as to the severing of contact when it considered humanitarian
factors under
the second limb:
[98] The direct physical contact now, while no doubt meaningful for him and
the children, is limited.
[...]
[99] The children's love for their father is accepted, but there is no evidence
that the limited physical contact
they have had with him during extended
periods in the past or even now has had any damaging effect on the children,
let alone led to any seriously adverse consequences.
[127] On this basis, the respondent characterises this situation as one where
physical contact between Mr Zanzoul
and his children would cease but there would
be limited impact of this separation. The respondent argues that this situation is
simply
insufficient to warrant exceptional circumstances. The Court is restricted by
the terms of s 115A of the Act to resolving questions
of law. As Gendall J stated in
Ogosi v Minister of Immigration HC WN CIV-2006-485-673 27 April 2007 (dealing
with a decision of the
Deportation Review Tribunal):
[22] Often, in appeals such as this, the challenge is to factual conclusions
or findings,
which are dressed up as points of law. The Court on appeal,
must be wary, not to substitute its own views as to factual matters
or the
merits, as Parliament has entrusted that task to the expertise of a Tribunal
well experienced in dealing with
applications to set aside or to cancel
deportation orders. If the Court is to interfere with the decision not to
exercise
a discretion, then an appellant must establish upon well recognised
grounds that that is appropriate, given that the Court's
powers are limited to
appeals on questions of law. Questions of fact cannot be elevated to
questions of law. This Court
cannot revisit facts unless it can be properly
contended that factual findings lack any probative evidence to the extent that
an error of law has occurred; Edwards v Bairstow [1955] UKHL 3; [1956] AC 14; [1955]
3 All ER 48.
[128] Gendall J then cited Wild J's judgment in Mohamud and Ors v Minister of
Immigration HC WN AP21/98 5 October 1998 which helpfully
described the
concept of error of law at 5:
Quintessentially, error of law involves the application of an incorrect legal
test or a wrong answer to a legal question upon unchallenged facts. Here, an
obvious example would be a Tribunal misinterpreting
or misapplying
relevant provisions of the Immigration Act. Under the label "question of
law" a limited incursion is
now permitted into the factual area where either
the Tribunal has:
1. Come to a conclusion without any evidence
or upon evidence which
could not reasonably support its conclusion, or
2. Failed to draw from unchallenged
primary facts an inference
favourable to the appellant, when such inference is the only one
reasonably
open.
What the Court must not do under the guise of a question of law is concern
itself with whether the Tribunal
was right or wrong in its conclusion, i.e.
with the merits of the case. Further, the weight to be given to the assessment
of relevant considerations is for the Tribunal alone and not for consideration
by the Court as a point of law. [...]
[129] Thus the respondent is restricted in its submission to arguing that the
evidence before the RRA (the children would be separated
from Mr Zanzoul) cannot
reasonably support the RRA's conclusion (that this amounted to exceptional
circumstances).
[130] The respondent
relies on inter alia, Hammond and Wilson JJ's judgment in
Ye v Minister of Immigration [2008] NZCA 291 at [409]:
The short answer however is that an inquiry having been embarked upon
the right question was simply never asked:
was there anything about the
current circumstances of these three New Zealand children, or one of them,
that suggested
Ms Ding should be allowed to stay in New Zealand? One
would have thought that (at least at this late stage of her case) the
mere fact
that these children would not henceforth have a present mother would not be
sufficient; sadly some children
are separated from mothers by death and
other human circumstances and yet show great resilience and wonderful
development
as human beings. [emphasis added]
[131] Moreover, O'Regan J stated for the Court of Appeal in Minister of
Immigration v Al Hosan
CA244/07 4 November 2008 at [72]:
[...] 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.
[132] Ye involved a `humanitarian
interview' that is mandated by Immigration
Service policy when considering cancelling a removal order under s 58, and
Al Hosan involved
the revocation of a residence permit; they did not involve the
application of s 47(3). However, they do provide an indication from
the Court of
Appeal that mere separation between children and one parent is potentially
insufficient to amount to `exceptional circumstances'.
[133] The most relevant proceedings to this case however is that in Mwai v
Removal Review Authority [2000] NZAR 206. The appellant in that case faced
removal from New Zealand and separation from his New Zealand partner and child.
The Court of Appeal
summarised the reasoning process of the RRA under the first
limb as follows at 212:
· becoming established in New Zealand
or meeting requirements of
permanent residence do not constitute exceptional circumstances of a
humanitarian
nature
· (perhaps) separation from one parent (but not the other) from a child
does not qualify
·
especially given the support the child has from her mother and her
mother's extended family
[134] Accordingly in
Mwai, the RRA was not satisfied that the appellant met the
first limb. Whilst the Court did not express a view on whether this reasoning
process
was correct, the appellant's appeal on the broader question of the RRA's approach to
s 63B (s 47) was dismissed. The respondent
argues that this is tacit approval from
the Court of Appeal that the separation of one parent, but not the other from a child
is
insufficient to meet the first limb of s 47(3).
[135] Setting a precedent as to categories of particular evidence before the RRA
that either will or will not satisfy the first limb of s 47(3) is ill-advised: Wilfred v
Chief Executive of the Department of Labour
[2007] NZAR 237 (HC):
[70] In one case, a single humanitarian circumstance may be
"exceptional"; in another case there may be a
combination of circumstances
which separately do not fit into that category, but when viewed cumulatively
amount to
exceptional circumstances of a humanitarian nature. There is no
fixed absolute; circumstances are very nearly always susceptible
to degrees.
Accordingly, the Authority must decide each appeal on its merits, against the
standard stated by Parliament,
and upon all relevant circumstances.
[136] Gendall J in that case went on to cite the guidance provided by Hammond J
in Sale and
Sale v Removal Review Authority HC AK M1471/93 26 October 1993,
which included that the categories of humanitarian response must
never be closed.
[137] This specific ground of cross-appeal was framed as an error of law by
arguing that the RRA erred in law
by lowering the threshold for the first limb, which
it must have done because the circumstances could not have met a higher threshold.
However, this is simply obscuring the actual reason why the respondent is aggrieved:
it disagrees with the RRA's conclusions under
the first limb. As stated above, that is
not an issue that the Court can entertain under s 115A.
[138] To maintain its error of
law argument, the respondent is thus forced to argue
that separation of one parent from his or her child is necessarily insufficient
to meet
the first limb of the test. There must be some disconnect between the clear evidence
before the RRA of the impending separation
and the threshold in s 47(3).
[139] Such a disconnect does not exist; there is no reason why separation in this
way will necessarily
fail the first limb. Accepting the respondent's argument would
create an unwarranted precedent: that regardless of the factual circumstances,
separation of one parent but not the other from a child cannot meet the first limb of
the s 47(3) test and the RRA will err in law
should it find otherwise. This would
wrongly constrain the RRA's discretion. To deal with the issue on a more case-
specific basis,
such as on terms that the circumstances of parent/children separation
in this case could not constitute exceptional circumstances
for the purposes of the
first limb of s 47(3), would be to alter a factual finding. There is no scope to do so.
[140] Thus, the
RRA was within its discretion when it held that Mr Zanzoul's
separation from his children met the first limb of s 47(3); it did not
err in law making
such a conclusion. That does not mean, however, that the RRA will be bound by this
finding on the reconsideration
I have directed. All aspects of the appellant's
situation will be open for review, on the circumstances as they then appear.
This
observation obviously applies equally to the two following points.
Appellant's mental health does not amount to exceptional
circumstances
[141] This ground of cross-appeal refers to the comments of the RRA at [62] of its
decision, cited at [63] above.
The respondent argues that the state of mental health
described in [62] of the RRA decision is not uncommon in the immigration context,
and is not a factor that distinguishes Mr Zanzoul from a range of other cases.
[142] This can be simply dealt with. As
discussed by Gendall J in Wilfred,
individual circumstances, whilst unexceptional in and of themselves, can
cumulatively amount
to exceptional circumstances. That is exactly the approach the
RRA adopted here. Mr Zanzoul's mental health was a relevant,
but not
determinative, factor and when put in conjunction with the separation from his
children, was found to constitute exceptional
circumstances. There cannot be an
error of law in the RRA's approach in this regard.
Applicability of Article 9 United Nations
Convention on the Rights of the Child
[143] This ground of cross-appeal arises out of [58] of the RRA's decision:
[58]
The Authority accepts it is required to have regard to the Convention
on the Rights of the Child. The best interests of the children are a primary
consideration
for the Authority (Article 3.1). Furthermore children should
not be separated from their parents, except where that is in
their best
interests (Article 9.1.)
[144] The respondent argues that the RRA's reliance on Article 9(1) of the
Convention
was in error. It bases this contention on comments by Glazebrook J in
her judgment in Ye v Minister of Immigration [2008] NZCA 291:
[69] The appellants, in support of their argument, refer to art 9 of
UNCROC which requires States to ensure that
a child shall not be separated
from his or her parents against their will, except when competent authorities
subject
to judicial review determine, in accordance with applicable law and
procedures, that such separation is necessary for the
best interests of the
child. However, art 9(4) expressly contemplates separation that may result
from "detention, imprisonment,
exile, deportation".
[70] Furthermore, as was set out at [141] of Baragwanath J's judgment, the
Chairman of the UNCROC
Working Group made it clear that art 9 was
intended to apply to domestic disputes and not to immigration matters.
Article
10 was intended to apply to separations involving different countries
and relating to cases of family reunification. Article
10 does not, however,
recognise the rights of parents and children to enter any country they wish
and is not intended
to affect the general right of States to establish and
regulate their respective immigration laws in accordance with their
international obligations [...]
[71] The Vienna Convention also permits supplementary means of
interpretation
to be used under art 32 such as decisions from other
jurisdictions. In this regard, it is relevant that the Puli'uvea interpretation
of
the standard in UNCROC aligns with that in comparable jurisdictions. For
example, the Supreme Court of Canada in
Baker v Canada (Minister of
Citizenship and Immigration) [1999] 2 SCR 817 held that the decision-
maker must consider children's best interests as an important factor and give
them substantial
weight. However, the Supreme Court recognised that this
did not mean that a child's best interests must always outweigh
other
considerations or that there will not be other reasons for denying a
humanitarian and compassionate claim in
the immigration context even
when children's interests are given this consideration see at [75] per
L'Heureux-Dubé
J for the majority (with Iacobucci and Cory JJ largely
concurring). [...]
[145] The respondent argues that the RRA's misapplication
of Article 9 in the
immigration context is a material error because it could have altered its conclusion
on the separation of Mr
Zanzoul from his children as exceptional circumstances.
[146] With respect, the Court accepts Glazebrook J's helpful guidance on
this
issue: the RRA should not have regard to Article 9 of the Convention. It is irrelevant
in the immigration context. However,
this does not mean that the RRA committed
an error of law by referring to it. The respondent acknowledged that it will only be a
material error if it caused the RRA to adopt the wrong legal approach. Immediately
following its comments about the Convention, the
RRA stated that the child's best
interests are not paramount, but instead a primary consideration. That is consistent
with Puli'uvea
v Removal Review Authority (1996) 2 HRNZ 510 (CA), and it is clear
that this is the approach that the RRA followed, because the rest of its discussion is
framed with this maxim
as a reference point. It does not refer to a duty on the
New Zealand Government to not separate Mr Zanzoul from his children, but
rather
that contact between Mr Zanzoul and his children would be in the latter's best
interests.
[147] Although the RRA should
not have made reference to Article 9, it did not
materially affect its approach and therefore does not amount to an error of law.
Accordingly, each of the three related grounds under this head of cross-appeal
should be dismissed.
First ground of appeal: RRA
erred in approach to stringency of `public interest test',
and second ground of cross-appeal: RRA erred in attributing humanitarian
factors
in public interest test
[148] It was argued for Mr Zanzoul that the RRA erred in its approach to the
`second limb' of s
47(3), namely, on its analysis as to whether it was not contrary to
the public interest to allow the appellant to remain in New Zealand.
Mr Zanzoul
argued that the same high standard should be applied to both limbs of the test and
that the RRA erred in differentiating
the standard for each limb.
[149] For the respondent, it was argued that the RRA erred in holding that it was
required to have
regard to all Mr Zanzoul's circumstances, including those
favourable humanitarian factors identified in its examination of the first
limb of the
s 47 test, when assessing the public interest under the second limb. The respondent
argued that this amounted to error
because these factors had already been taken into
account under the first limb; it was unnecessary and illegitimate to take them
into
account a second time. This is especially so when s 47 does not mandate the
consideration of these factors but instead the more
general concept of `public
interest'.
[150] The test for the `first limb', namely exceptional circumstances that would
make it
unduly harsh or unjust for Mr Zanzoul to be removed from New Zealand, is
a difficult one to meet. The Court of Appeal addressed the
test in the predecessor of
s 47(3) in the passage in Patel cited at [60] above.
[151] Analysis of s 63B applies equally to s 47:
H v Removal Review Authority
HC AK CIV-2007-404-3340 12 October 2007 Randerson J. Mr Ellis submitted that
the `high threshold' should
apply to both the first and second limb on the basis of
logic, and that it was an error of law not to do so. However, when I raised
with him
the inconsistency between that proposition and the terms in which the section is
expressed, he was inclined to accept that
the natural and ordinary meaning of the
words in their context is against his proposition.
[152] The first part of s 47(3) creates
as the sole ground on which an appeal may be
brought that there are exceptional circumstances of a humanitarian nature that would
make it unjust or unduly harsh for the person to be removed from New Zealand. The
cases, including the citation above from Patel,
confirm the impact of the natural and
ordinary meaning of these words, namely that the onus requires the appellant to
make out exceptional
circumstances. Thereafter, the latter part of the section
introduces a control or qualifying consideration that must also
be evaluated, before
the appeal could succeed. That second limb is to be taken as deliberately cast in the
negative, so that the
RRA must be satisfied that it would not be contrary to the public
interest to allow Mr Zanzoul to remain. That is a lesser burden
than if the appellant
had to establish it was positively in the public interest to allow him or her to remain,
and the wording contemplates
a balanced evaluation. There is nothing in the way
these two limbs of the test are to be evaluated that would justify attributing
to the
second aspect the stringency of the test imposed under the first. Nor has such a need
for consistency of approach been suggested
in any of the cases on the section.
[153] The structure of s 63B as considered in Patel made explicit provision for the
two limbs by way of separate paragraphs under subs
(2). The interrelationship
between these two limbs was discussed by the Court of Appeal in Mwai cited above,
where
the Court stated that it is not a two-step process, and as long as the RRA
considers all the circumstances, an appeal can fail merely
by recourse to what was
then subs 63B(2)(b). At 212:
While we have indicated a general expectation that the Authority would
ordinarily reach an express conclusion on the first matter, it is possible to
contemplate a situation in which that
issue would be very closely balanced
and the public interest issues are overwhelmingly against the appellant. In
such a case the Authority might prefer to express its decision solely in terms
of the second matter. But if it does that,
it must consider 'all the
circumstances'.
[154] Those discrete limbs in s 63B(2)(a) and (b) were fused into one paragraph
on
the enactment of s 47(3) on 1 October 1999. The current proceedings appear to be
the first to come before the Court on appeal
where the RRA accepted the first limb of
the test was met but the appellant failed on the second limb. It appears that all past
appeals
from the RRA involved decisions where either both or neither limbs were
met, rather than only one or the other. Since the RRA here
decided that the first but
not the second limb had been met, the RRA's approach to the second limb comes
into stark relief.
[155]
Mr Ellis argued for the same high threshold involved in meeting the first limb
also applying to the second, in part by resort to
s 9 of BORA. He suggested that to
remove someone from New Zealand when it would be unduly harsh or unjust (the
first limb) would
be to breach s 9 of BORA (ie the right not to be subjected to
disproportionately severe treatment or punishment) and therefore necessarily
contrary to public interest.
[156] The logic of this submission relies on an interdependence between the first
and second limb
so that the factors governing each must be mutually contingent.
However, the words of the section do not contemplate such mutuality.
The prospect
of such interdependence was considered by McGechan J in Prasad v Chief Executive
Department of Labour [2000] NZAR 10 at 22-23:
[...] The test under s 63B(2)(a) is not simply "exceptional circumstances of a
humanitarian nature", although
that sometimes is used as a shorthand
expression. The test is "exceptional circumstances of a humanitarian nature"
because of which "it would be unjust or unduly harsh" to remove or not
reduce. There is this qualitative qualification. The
circumstances must be
such that "it would be unjust or unduly harsh to remove"; nothing less. How
does one sensibly
determine whether it would be "unjust" or "unduly harsh"
to remove without some reference, on the other side of the ledger,
to the
public policy considerations which point to such removal? Any inhumane
treatment can be unjust or unduly harsh
in the abstract: one needs to be able
to at least consider policy in the process of balancing up whether it is so to
such a degree that an exception to policy should be applied, and removal
foregone. As to s 63B(2)(b) "public interest" it
is to be remembered that
such is to operate as a deliberate control upon the humanitarian exception,
intended to prevent
unacceptable levels of public harm....I have little doubt
that when Parliament required the Authority to be satisfied an exception
would not be contrary to the "public interest" it expected the Authority to
think in broad and protective terms. It
is a comprehensive phrase. Certainly,
it would encompass repercussions such as trade embargoes. I see no reason
why
it would not encompass precedents under s 63B(2)(a) which, needing to
be applied consistently, could swamp or unduly strain
New Zealand's
immigration and social structures. The phrase "public interest" should not
be artificially constrained.
There seems every reason to think Parliament
intended some appropriate attention would be paid, under that head, to the
obvious ongoing need for legislative integrity, although not to such a degree
as would stultify s 63B altogether.
Second, the general legislative intention underlying s 63B. It seems
inherently unlikely that Parliament, having stated
a clear policy and a
humanitarian exception, expected that exception to be approached with
blinkers on as though that
policy did not exist. Parliament would have
intended the humanitarian exception to be operative, but likewise would
have expected underlying policy to be kept in mind and to operate where
necessary as a proper restraint during the decision-making
process. I have
difficulty with the concept it is Parliament's will that Parliament's will be
ignored.
[157] Two points
arise from McGechan J's analysis of the s 63B(2) (and therefore
s 47(3)) test. First, that the two limbs cannot be considered in
independent vacuums.
The Judge saw a substantial degree of overlap, so there may be factors that are
common to both limbs. The context
in which the first limb is assessed is that the
RRA will be dealing with a person who is categorised by the Act as unlawfully in
New Zealand, and has in all other respects exhausted the avenues available under the
Act to remain in New Zealand. In that context,
the first limb invites a consideration
of the personal consequences of expulsion for that person and those who would be
closely affected
by the removal from New Zealand. The starting position is that the
person is required to be removed from New Zealand, but this is
a last opportunity for
reflecting on the extent of adverse consequences that will flow from that. For those
dealing with these appeals,
there will be a range of seriousness of those adverse
consequences, particular to each appellant. They do not necessarily have to
be tested
against, or tempered by, some reflection of what is in the public interest which will
reflect broader considerations.
[158] The second point from Prasad is that notwithstanding that each limb is not
completely independent, this is not equivalent to saying that the limbs are
interdependent
or mutually contingent. The second limb was seen as relevant to the
determination of the first limb and vice versa, but the success
of an appellant under
the first limb will not necessarily guarantee success under the second limb. This
must be the case, because
as McGechan J identifies, the second limb fulfils the
objective of acting as a `deliberate control' on the first limb. So, on Mr
Ellis's
argument, if the second limb must always be met if the first limb is met, because to
do otherwise would be in breach of s
9 of BORA, then s 9 would be applied to
undermine this function of the second limb acting as a `deliberate control'.
[159] It follows
that the RRA did not err in treating the second limb of the test as
not being met simply because it should have been dictated by
the outcome of the
inquiry into the first limb. Moreover, as Mr McCarthy noted, there are two decisions
of the Court of Appeal (Chief
Executive of the Department of Labour v Taito [2006]
NZAR 420 and Puli'uvea), both of which held that the removal of the appellants in
those cases could not amount to a breach of s 9. As stated
in Puli'uvea at 523, the
threshold for s 9 is much higher than that of the first limb in s 47(3), and thus the
removal of those who
meet the first limb but fail the second will not necessarily
breach section 9 as the appellant contends.
[160] The analysis in Prasad
also demonstrates that if the two limbs were mutually
contingent upon one another, then having the same `high threshold' might be
appropriate. However, although there may be factors that are relevant to the
inquiries under both the first and second limbs, the
limbs are sufficiently
independent to have their own thresholds.
[161] Moreover, given that the language of each limb in s 47(3)
is different, and the
thresholds applied to each limb are derived from that language, then the thresholds
for the first and second
limbs will be different. Since the language in the second
limb does not have the `stringent words' that are present in the first
limb, then the
test on the threshold for the second limb must be seen as intentionally lower than the
first. The first aspect of
Mr Zanzoul's first ground of appeal is simply negated by
the plain meaning of s 47(3).
[162] This outcome reflects the purpose
of s 47(3). The first limb represents the
basis for a very narrow exception to an overall policy of removing persons who are
unlawfully
in New Zealand. The narrowness of the exception justifies the `high
threshold'. However, the second limb does not form the basis
for the exception. In
fact, it qualifies the exception; it is a broad and protective measure designed to
deliberately constrain the
exception. Thus the purpose for the `high threshold'
applicable to the first limb does not apply to the second; there is no need
for a
narrow interpretation and therefore no need for a `high threshold'.
[163] Mr Zanzoul complains that the different thresholds
means that there are
different burdens of proof on the appellant and respondent and this amounts to
unfairness. However, any such
differences are a consequence of the policy behind
the structure of the section. Any perceived unfairness could not justify
an
application of the section, inconsistent with its terms.
Appellant's second ground of appeal: A positive finding in the second
limb
[164] Mr Zanzoul argued that the RRA made a positive finding that Mr Zanzoul's
presence in New Zealand would be contrary to
the public interest, when s 47(3) does
not require the RRA nor authorise it to make such a positive finding. Rather, the
section
requires the RRA to make a negative finding whether Mr Zanzoul remaining
would not be contrary to the public interest.
[165] This
ground of appeal rests on paragraph [105] of the RRA's decision:
[105] The Authority has considered the effect of removal
on him and the
children but finds, in light of his criminal conviction, his propensity to lie to
immigration and judicial
officers in Australia and New Zealand, the use of
fake passports and assumption of a false identity in Australia for a number
of
years, lying to his wife, his treatment of his wife (including at least one
assault) and his oldest daughter in
breach of court orders, that it has not been
established that it would not be contrary to the public interest to allow him
to
remain in New Zealand. Indeed the Authority finds that it would be contrary
to the public interest to allow him
to remain in New Zealand. [emphasis
added]
[166] Mr Zanzoul relied upon Faavae v Minister of Immigration [1996] 2 NZLR
243 (HC) to argue that it is beyond the jurisdiction of the RRA to make such a
positive finding. Anderson J stated at 249:
The
penultimate sentence of the judgment deals laconically with the second
limb of s 105(1), namely that concerned with whether
it would not be
contrary to the public interest to allow the appellant to remain in
New Zealand, by way of a specific
finding that it would not be in the public
interest for the appellant to remain in New Zealand. This is not a question
with which it is seized. There is a conceptual difference, of course, between
on the one hand finding or not finding that
it would not be contrary to the
public interest, and on the other hand coming to an affirmative view that it
would
not be in the public interest for an appellant to remain in
New Zealand. The latter finding beyond the scope of its jurisdiction
could
be very damaging to a person who is a legitimately unsuccessful appellant to
the tribunal. Suppose, for example,
that an unsuccessful appellant should
wish to visit New Zealand at some time in the future and the question of a
visitor's
permit should arise. A tribunal finding, on record, that,
affirmatively, it would not be in the public interest for
the appellant to
remain in New Zealand might well be conclusive of the issue whether even a
short-term visitor's permit
should be issued. Appellants do not go to the
tribunal in order to defend themselves against an assumption that it would
not be in the public interest for them to remain. [emphasis added]
[167] Anderson J was dealing with s 105 of the Act, which
stated the same
substantive test as s 47(3), but in the context of deportation. With great respect to
the approach taken by Anderson
J in Faavae, I cannot see the conceptual prospect of
overstatement of the test on a finding adverse to an appellant as having material
adverse consequences for such an appellant. Any person removed from
New Zealand under the Act will thereafter face
virtually insurmountable difficulties
in attempting to gain entry lawfully at any time in the future. Section 7 of the Act
renders
such persons not eligible for a permit and any subsequent consideration of
such a person's plea to re-enter New Zealand would practically
focus upon the fact
of removal, rather than the fine detail of the reasoning by the RRA in any final
attempt by that person to remain
here on a previous occasion. Nonetheless, there is a
difference between the negative and positive versions of the finding as instanced
in
Faavae, and in directing how persons seeking to remain in New Zealand are to be
dealt with under the Act, Parliament must be taken
to have cast the relevant test
under the second limb of s 47(3) in negative terms for a deliberate reason. It
therefore
means that going beyond the test on the terms articulated by the Act would
be to misapply it, and that should not occur.
[168]
Faavae can be distinguished to the extent that the Deportation Tribunal made
only the positive finding that Anderson J found to be
ultra vires. In the present case,
the RRA first made the appropriate negative finding. The RRA's subsequent
positive finding
amounted to a parting shot to emphasise its conviction on the
negative finding. Thus, unlike Faavae, the RRA did fulfil its jurisdictional
requirements. The difficulty is that it then proceeded to exceed its jurisdiction by
making the positive finding. If this was the
only error recognised, there would be
scope for doubt as to whether it was sufficient to vitiate the RRA's decision. Given
the extent
of knowledge now held by the Immigration Service about Mr Zanzoul, it
is difficult to accept that the last sentence in paragraph
[105] would make a material
difference in any subsequent dealings he might have with them. However, there is
the prospect that the
RRA decision might be available to authorities in other
countries, and that this gratuitous observation could have an impact on his situation.
In the
reconsideration directed on other grounds, the RRA should confine itself to a
consideration of the negative test.
Respondent's
second ground of cross-appeal: approach to second limb
[169] The respondent argues that the RRA erred when it re-weighed or `double-
counted' humanitarian factors when looking to the second limb of the test in s 47(3).
The RRA stated at [96]:
[96] In
considering the public interest, the Authority is required to have
regard to all the appellant's circumstances, including
the favourable
humanitarian factors identified in the earlier section of this assessment.
Notably, the effect of his
removal on his children and himself must be
considered.
[170] Rodney Hansen J in Garate v Chief Executive of Department of
Labour
HC AK CIV-2004-485-102 30 November 2004 authoritatively stated the approach to
humanitarian factors under the second limb
in the following terms:
[41] Section 63B(2)(b) requires all circumstances to be looked at afresh
through the prism
of the public interest. For this purpose, it seems to me, the
Authority is required to weigh those factors which would make
it in the
public interest for the appellant to remain against those which make it in the
public interest that he leave.
The former are likely to include (although will
not be confined to) the exceptional circumstances of a humanitarian nature
relied on under subpara (a), for it must be in the public interest that a family
with established roots in this country
should be permitted to stay, and to stay
together, and that international conventions directed to those ends are
respected.
The latter circumstances will include the appellant's proven
misconduct, evaluated in the way I have suggested, and measured
by
reference to the harm to the community which will ensue if he stays.
[171] This represented an acceptance of the Court
of Appeal's approach in Mwai at
212:
We return to the terms of s 63B(2) and to the appellant's two submissions
based
on them. The first submission was that the Authority could not make
a decision under para (b) of s 63B(2) unless it had first
made a decision
under para (a). (It would not of course have to make a decision under para
(b) had it decided adversely
to the appellant under para (a).) Supporting that
submission is the difference in focus of the two paragraphs. The first is
about humanitarian matters, relating especially to the appellant, but also to
those who would be affected by his removal.
The second is wider, relating
to "all the circumstances" and to "the public interest". The Authority's
process of decision
making, it may be expected, would move from the
particular to the more general, especially since any humanitarian
consideration
arising under para (a) would appear also to fall within the
scope of "all the circumstances" made relevant to the para (b)
determination. In the great majority of cases we would expect the RRA to
make a decision under para (a) before proceeding,
if the first decision
favoured the appellant, to para (b). As explained later, the matters covered
by para (a) must
be considered when a decision is made under para (b) in
any event. [emphasis added]
[172] The respondent invited the Court
to depart from the approaches in Mwai and
Garate, which it views as incorrect. It provided two reasons for this submission.
[173]
First, the respondent argued that it is reasonable to conclude that the two-limb
test meant Parliament intended the `public interest'
to be served by the removal of a
person unlawfully in New Zealand, notwithstanding that the person may face
exceptional humanitarian
circumstances. The second limb therefore takes priority.
The exception is that the person can remain if he could prove that it was not
`contrary to the
public interest' for him to remain. If this is the case, Parliament
arguably could not have intended to include consideration of
public interest
humanitarian factors in the second limb, for they have been reflected in the first
limb.
[174] Secondly, the respondent
argued that humanitarian factors do not fit into the
definition of `public interest factors', which are matters that affect New Zealand's
national interests generally.
[175] The respondent submitted that the Court of Appeal's comments on the
approach to the second
limb were obiter dicta and that Garate is not binding on this
Court. Further, that the Court should take a `principled' approach
to the second
limb. Parliament intended the first and second limb to focus on private and public
factors respectively, and that in
the event of a conflict, the latter should prevail.
[176] The comments made earlier on the relationship between the first and second
limbs are relevant: the limbs are neither interdependent and mutually contingent, nor
are they entirely distinct. As McGechan J observed
in Prasad, the second limb
cannot be artificially constrained or blinkered; there is overlap between the two
limbs. I am not persuaded
there is any error in this and the respondent's `principled'
approach does not appeal as better reflecting the statutory test. I
prefer to follow the
established precedents in Mwai and Garate.
[177] The respondent's argument required `humanitarian factors'
and `public
interest factors' to be treated as mutually exclusive concepts. However, there is no
reason why the former cannot come
under the umbrella of the latter; no reason why
humanitarian factors are inherently `private' as asserted by the respondent.
Hammond
J stated in Sale at 9:
Clearly the term `humanitarian' reflects the social fact that we all belong to a
race of persons.
We can communicate with each other. We share certain
understandings which we believe all members of the human race ought to
respect. The difference between humans and non-humans is that humans are
not alone. A humanitarian concern is a concern
for the wellbeing of others
and respect for their particular circumstances.
[178] If anything, this indicates that humanitarian
factors may indeed have
inherently public features: their consideration is very much in the public interest.
[179] Mr McCarthy
was inclined to suggested that s 47(3) is `awkward'. However,
there is a relatively straightforward sequence about it: (particular)
humanitarian
factors are considered under the first limb and (general) humanitarian factors are
considered under the second limb
to the extent that they have relevance through the
different lens of the public interest. This is the effect of the judgments in
Mwai and
Garate, and it seems more likely that Parliament would seek this outcome, especially
given the explicit inclusion of the
words `all the circumstances'. Whilst I accept the
respondent's argument that the second limb is designed to constrain the first
limb,
there is no logical reason why the second limb cannot consider factors already
considered in the first limb. This ground of
cross-appeal is dismissed.
Summary on the approach to s 47(3)
[180] I have found the following in respect of the grounds of appeal
and cross-
appeal attacking the RRA's approach to the test under s 47(3).
· First ground of appeal: there is no logical reason
why the two limbs under
s 47(3) must have the same threshold applied.
· Second ground of appeal: the RRA should not
have added a positive finding
under the second limb that allowing Mr Zanzoul to remain would be contrary
to the public
interest. On the reconsideration directed under a previous
successful ground of appeal on the RRA's error under s 50(7) of
the Act, the
RRA should confine itself to the negative analysis of whether it is not
contrary to the public interest to permit the appellant to remain.
However, I
am not persuaded that this error would have been sufficient, on its own, to
direct reconsideration.
· First ground of cross-appeal: the reliance by the RRA on the relative
importance of Mr Zanzoul's separation from his
children, and his mental
health, are findings of fact not able to be challenged in an appeal confined to
questions
of law. The RRA does not need to have regard to Article 9 of the
Convention, but did not err in law as it did not amount to
a material error.
The RRA was within its discretion to hold the first limb was met on the
evidence before it.
· Second ground of cross-appeal: the RRA did not err in considering
humanitarian circumstances under the second limb.
Failure to have regard to relevant considerations
Consideration of medical reports
[181] Mr Ellis submitted that the way in
which the RRA dealt with medical
evidence tendered in support of Mr Zanzoul's appeal amounted to an error of law by
failing to have
regard to relevant considerations. Passages from medical reports that
were particularly relied on in the appeal were those from Dr
Wansbrough, a
psychologist, in the following terms:
I was pleased to hear that his work permit was renewed last week and
I am
currently applying for a sickness benefit for him because of his stress
disorder...at present he is on anti-depressant
medication (this also has a
small anti-anxiety effect) and sleeping medication. (27 April 2005)
[182] And from a general
practitioner:
...the abovementioned patient suffers from depression problem for the last
one year in form of poor
sleep, poor appetite, isolation, loss of weight and
suicidal tendencies.
I believe that removal from New Zealand would
worsen his mental states
especially his suicidal ideas, I have referred him to a psychiatrist.
(2 September 2005)
[183] And a joint letter from Vicas Modgil (psychologist) and Corinna Friebel
(transcultural therapist):
He presented with
features suggestive of a major depressive illness which
have affected his physical and mental well-being significantly. His
friend
was extremely worried about the risk of suicide...
Considering the above clinical and social context we think
that the loss of
access to children through Ahmad's deportation will put him at high risk of
suicide. (2 September
2005)
[184] The RRA did consider this medical evidence, and had regard to it on both
limbs of its considerations under s 47(3).
On the first limb, the RRA made the
finding cited at [63] above.
[185] When it came to the second limb of matters relevant to the
public interest, the
RRA reflected as follows:
[100] As for the appellant himself, there is psychological evidence from
his general practitioner and from Auckland Public Health and also Auckland
Mental Health Services as to his stress and
depression. He has been seen by
the Crisis Service. The authors of one report (a psychiatrist and
psychotherapist)
opine that the loss of access to his children will put him at a
high risk of suicide.
[101] While acknowledging the
professional expertise of the medical
practitioners, such claims are easy to make and are commonly seen by
refugee
and immigration bodies. They are based on self-reported symptoms,
which can be designed to achieve a desired effect. The appellant,
it must be
remembered, has a history of lying to achieve his goal of permanent
residence outside Syria and has sought
to manipulate others, including the
oldest child and no doubt his wife along the path to reaching that goal.
[186] This argument
on behalf of Mr Zanzoul was really a complaint that the RRA
attributed inadequate weight to the medical evidence. If at all, that would be an error
of fact and does not demonstrate any error of law.
[187] Mr Ellis was inclined to argue that the RRA could not be sceptical of the
medical reports in the absence of contradictory
evidence put before it, or obtained by
the RRA. That notion has been consistently rejected, eg Al Mamoon Ahamed
Bhuiyan v Minister
of Immigration HC WN AP321/01 2 May 2002 Doogue J and
Butler v Removal Review Authority [1998] NZAR 409 (HC), especially 424 and 425.
In the latter case, Giles J found that the RRA was obliged to consider whether
medical reports might
be exaggerated or overstated, and then to assess them in the
context of the statutory framework. Further, the RRA was not obliged
to accept the
report of a qualified expert without more. The RRA is fully entitled to evaluate and
assess the evidence, to consider
it in the context of the totality of the evidence and
reach its own objective and reasoned assessment of it.
[188] In this case,
the RRA was not prevented from objectively testing the real
impact of the medical reports by virtue of the absence of expert criticisms
of them. I
consider in particular that the terms of paragraph [101] of its decision, cited above,
were well justified, given the
terms of the reports, and the period of time that had
elapsed since they were produced with no documented occurrences of the concerns
as to medical health they addressed.
[189] Part of Mr Ellis's criticism of the RRA's approach to the medical evidence
was the excessive
reliance he suggested had been placed on the fact that Mr Zanzoul
had lied previously about matters relevant to attempts to gain
residence. He drew an
analogy with s 124 of the Evidence Act 2006 which codifies the obligation on a
Judge in a criminal trial to
either warn the jury, if there is one, or for the Judge him
or herself to have regard to the proposition that people do lie for various
reasons, and
that a finding that a defendant had lied on a previous occasion does not mean the
defendant is guilty of the offence
for which he or she is being tried.
[190] However, the absence of an explicit qualification on the extent of relevance
placed on
Mr Zanzoul's lying on previous occasions cannot constitute an error of
law, in the nature of the RRA misdirecting itself as to the
relative weight that can be
given to various aspects of the evidence before it. Tribunals such as the RRA are to
apply their expertise
at sifting through and assessing factual materials within their
areas of expertise. They and are to be taken as applying the common
sense that the
existence of lies on previous occasions, even in closely analogous circumstances, do
not of themselves establish that
Mr Zanzoul has deliberately lied on the occasions
that are directly relevant to the medical evidence being considered. Here, the
terms
of the RRA decision reflect no more than a concern not to accept at face value the
accuracy of self-reported symptoms. No error
of law can be made out.
Failure to consider s 8 of BORA
[191] Mr Ellis asserted a positive obligation for the RRA to consider
and protect
Mr Zanzoul's right to life, in reliance on the terms of s 8 of BORA, which provides:
No one shall be deprived
of life except on such grounds as are established by
law and are consistent with the principles of fundamental justice.
[192]
This argument was coupled with the last one considered, namely that the
medical evidence ought to have drawn the RRA to the conclusion
that there was a
real risk of Mr Zanzoul committing suicide. That was a risk the RRA had positively
to recognise, when in light of
s 8 of BORA it amounted to a relevant consideration
favouring the granting of his appeal.
[193] In responding to this point, the
respondent first questioned whether the terms
of s 8 of BORA create a positive duty to protect life, or whether instead the section
recognises only a right not to be deprived of life. Their submissions drew a
distinction between the positive terms of a
right to life as provided in equivalent
provisions in other jurisdictions, and an assumption that s 8 is deliberately cast in a
more
confined way in BORA. (See, for example, Article 2(1) of the European
Convention on Human Rights, and Article 6(1) of ICCPR.)
[194]
A further issue is whether and, if so, to what extent the right protected by s 8
of BORA is a consideration to which the RRA was
required to have regard, under
either or both of the limbs of s 47(3). In that context, Mr McCarthy submitted that
not every claimed right to life will oblige the State
to take proactive measures to
prevent a risk to that right from materialising. He cited decisions to this effect in
Osman v United
Kingdom (2000) 29 EHRR 245 at [15], Edwards v United Kingdom
(2002) 35 EHRR 487 at [54]). Beyond any general obligation to have proper
systems in place, an obligation to any individual could only arise where the State
authorities knew or ought to have known of a real
and immediate risk to the life of
that individual. On the facts as found by the RRA, Mr Zanzoul is not in that
position. If he were
so, then the evaluation under both limbs of s 47(3) would no
doubt have been weighted differently, and it is by no means clear that
Mr Zanzoul
would have needed to invoke a right as expressed in s 8, to warrant a finding in his
favour.
[195] However, on the
facts no sufficient prospect of suicide was found to arise, to
trigger either such a positive obligation, or a more limited one.
[196] Accordingly, I reject the notion that there was a positive obligation on the
RRA in this case to treat the right recognised
in s 8 of BORA as a relevant
consideration. Nor am I satisfied that, if a real and immediate risk of suicide was
established, the
nature of the right under s 8 would apply to elevate the relevant
consideration beyond the level of relevance it would have, as a
material factor under
s 47(3) in its own right.
Failure to consider s 9 of BORA
[197] Section 9 of BORA recognises the right
not to be subjected to torture or to
cruel, degrading or disproportionately severe treatment or punishment.
[198] In developing
his oral submissions, Mr Ellis placed considerable weight on
what he saw as the double jeopardy or double punishment imposed on Mr
Zanzoul.
First, by prosecuting him for passport fraud in reliance on his statement volunteered
when he entered New Zealand, surrendering
a false passport and acknowledging the
extent of previous resort to it. Secondly, on Mr Ellis's analysis, having convicted
Mr Zanzoul
on those charges and sentenced him to a term of imprisonment, the
New Zealand Government was now submitting him to a second form
of punishment
in relation to the same conduct, by requiring that he be removed from New Zealand.
[199] Treating the second consequence
as a further form of punishment flowing
from his immigration fraud adopts an unrealistically narrow approach to the range of
reasons
why Mr Zanzoul is not able to lawfully remain in New Zealand. He sought
status as a refugee, and was found not to qualify for that
status. He subsequently
pursued other avenues to remain legally in New Zealand, without success. In the
RRA's judgment under appeal,
the nature and extent of his immigration fraud is but
one aspect of the factual context. It did assume some significance in the evaluation
of the public interest, which was treated as including the deterrence of immigration
fraud. Its relevance in that regard does not
constitute a second punishment of
Mr Zanzoul for the crimes of which he has been convicted.
[200] Mr Ellis acknowledged what was
required to establish disproportionate
severity, as considered by the Court of Appeal decision in Puli'uvea and the
Supreme Court
decision in Taunoa v Attorney-General [2008] 1 NZLR 429. In the
judgment of Keith J in the former case, reference was made to the high threshold
required on disproportionately severe treatment.
There, an earlier expression
endorsed was "treatment that is so excessive as to outrage standards of decency". In
Taunoa,
Blanchard J expressed s 9 as being concerned "with conduct on the part of
the State and its officials which is to be utterly condemned
as outrageous and
unacceptable in any circumstances". For the majority in that decision, Tipping J
articulated the test in the following
terms:
[289] I would prefer a test to the same general effect, defining
disproportionately severe conduct as
being conduct which is so severe as to
shock the national conscience. This test achieves purposes which must be
deemed inherent in a concept which is linked with torture and other cruel
and degrading treatment. First, it emphasises
that the standard is well
beyond punishment or treatment which is simply excessive, even if
manifestly so. Second,
it introduces the notion of the severity being such as
to cause shock and thus abhorrence to properly informed citizens.
Third, the
reference to the national conscience brings into play the values and standards
which New Zealanders
share.
[201] The approach those decisions contemplate reflects the bedrock nature of the
rights and freedoms protected by BORA.
As its long title specifies, it is an Act:
(a) to affirm, protect, and promote human rights and fundamental
freedoms in New Zealand; and
(b) to affirm New Zealand's commitment to the International Covenant
on Civil and Political Rights.
As such, it operates as the backstop rather than the vanguard for protection of human
rights. In the vast majority of situations, more specific manifestations of the
protections for individuals will be reflected
elsewhere so that it is generally unlikely
to be the provision first resorted to, and will more likely be the last provision
resorted
to in the human rights context.
[202] Here, I accept the submission on behalf of the respondent that if a material
extent of disproportionately
severe treatment could be made out for Mr Zanzoul,
then it would avail him under s 47(3) without the need to resort to s 9. Accordingly,
no error of law is made out by virtue of the fact that the RRA did not turn its mind to
whether the right protected by s 9 had been
breached.
Failure to take into account Articles 17 and 23(1) of ICCPR
[203] These Articles of ICCPR recognise that no one is
to be subjected to arbitrary
or unlawful interference with, among other things, his privacy, family or home, and
that the family
is the natural and fundamental unit of society and is entitled to
protection. Whilst acknowledging that the rights of Mr Zanzoul's
children were
taken into account, or at least referred to, on the tests under both limbs, Mr Ellis
contended the RRA had erred because
it did not refer to Articles 17 and 23(1) of the
ICCPR. He contended a positive obligation to do so in reliance on observations in
the Court of Appeal decision in Tavita v Minister of Immigration [1994] 2 NZLR
257. That decision explicitly did not decide the question whether, when a statute is
silent as to relevant considerations, international
obligations are required to be taken
into account in such an absence. The Court of Appeal did, however, recognise that a
failure
to give practical effect to international instruments to which New Zealand is a
party "may attract criticism".
[204] The respondent's
argument on this was to the effect that the RRA decision
did indeed reflect the concerns identified in these two Articles of ICCPR
and, from
the respondent's perspective, more weight was placed on them than is warranted.
Paragraph [16] of the RRA decision treated
Mr Zanzoul's right to remain in contact
with his children and their right to know their father as "the primary basis for the
appeal".
That paragraph referred to the Convention, and the recognition of their
interests reflected in the decisions in Puli'uvea and Tavita.
Further, in paragraph
[58], the RRA recognised that it was required to have regard to the Convention, and
that the best interests
of the children are a primary consideration. Further, the
children should not be separated from their parents except where that is
in their best
interests (citing Articles 3.1 and 9.1 on these points). The RRA did not accept,
however, that the interests of the
children were "paramount".
[205] It is unnecessary to decide whether there was a specific obligation, as a
matter of law, for the
RRA to have regard to these provisions of ICCPR. In any
event, I accept the respondent's point that the passages from the decisions
referred to
above do reflect the protections contemplated by Articles 17and 23 of ICCPR. There
could be no error in the RRA not explicitly
acknowledging them, where to have done
so would not have altered the reasoning. Accordingly, that ground of appeal must be
dismissed.
Section 27 of BORA
[206] There were two aspects to the criticisms of the RRA's failure to afford
Mr Zanzoul a hearing that complied
with the principles of natural justice, as
recognised in s 27. The first related to the failure to disclose the existence of
material
potentially prejudicial to him and that has already been considered, in the
finding in Mr Zanzoul's favour reflected in [78] to [98]
above.
[207] The second criticism was an alleged inadequacy in reasons for the RRA's
decision. This appeared to focus on perceived
inadequacies in the reasons for
rejecting the medical evidence that had been provided to the RRA on behalf of
Mr Zanzoul. Mr Ellis
rejected paragraph [101] as not containing reasons for the
determination on the medical evidence, but rather conclusions which were
made
without reasoned justification. He relied on the Court of Appeal's decision in Lewis
v Wilson & Horton [2000] 3 NZLR 546 in this regard. That decision considered the
adequacy of the way in which a District Court Judge had dealt with an application
for
suppression of name in criminal proceedings. Having heard submissions on the
matter in chambers, the terms of an order granting suppression
of name reflected
conclusions, which on their terms did not reflect the statutory grounds on which
suppression of name might be ordered.
The Court of Appeal expressly declined to
determine whether reasons are required by Courts in New Zealand in all
circumstances. Citation
of the grounds referred to but not explained in the District
Court Judge's decision predictably drew a measure of criticism.
[208]
However, I do not consider the Court of Appeal's approach in those
circumstances would apply in the same way to an evaluation of
the adequacy of
reasons on this part of the RRA's decision. It is not a Court, but a specialist
Tribunal. It is entitled as a matter
of law to form its own view on the evidence it has
heard, and paragraph [101] does provide an adequate indication of the reasons
relied
on by the RRA for not attributing greater weight to the claimed risks to
Mr Zanzoul's mental health.
Failure to take into
account lack of future risk, and the benefits Mr Zanzoul could
provide to the New Zealand community
[209] Mr Ellis argued that
the level of risk to the community that would be present
if Mr Zanzoul remained was a relevant consideration in assessing the public
interest
under the second limb of the test in s 47(3). Mr Ellis drew an analogy with s 382 of
the Companies Act 1993, which prohibits
certain convicted persons and those
against whom a judgment has been obtained in an action under Part 1 of the
Securities Markets
Act 1988 from being directors or promoters of a company, unless
such person has first obtained the leave of the Court to do so. Authorities
applying
that section indicate that protection of the public interest is a primary objective.
Mr Ellis argued that the public interest
consideration under s 47(3) ought similarly to
reflect what level of risk a person might present if permitted to remain.
The
respective mischiefs addressed are obviously quite different, and whilst in general
terms I recognise there are cases in
which reliably predictable outcomes in the future
may influence the RRA's assessment of the public interest, it does not warrant
status
as a mandatory relevant consideration.
[210] Mr Ellis's submission depended upon the reliability of a prediction he made
that there was no prospect of Mr Zanzoul offending in any way in the future, and that
his skills as an expert tiler would enhance
the skills available within the country.
[211] The respondent made the point that past conduct is one indication of the
likely
nature of future conduct, and in this case Mr Zanzoul has repeatedly breached
immigration laws and committed fraud and perjury. The
argument that granting him
residence in New Zealand would remove the motive for future offending of that type
is one reason for
questioning whether there will be any repetition of previous
criminal conduct, but it can hardly be presented as a compelling basis
for an
assurance there would be no further offending.
[212] Nor was there any basis for the RRA to find skilled tilers as being
a resource
so scarce that the public interest favoured permitting Mr Zanzoul to remain, in order
to lessen some serious skill shortage.
[213] An error of law in the nature of failure to have regard to a relevant
consideration, when that consideration is not mandatory,
must depend on the
existence of circumstances which ought to have been taken into account. Here, the
existence of factual circumstances
supportive of Mr Zanzoul's appeal to be permitted
to remain in New Zealand depends on a different view of factual matters than was
obviously in the mind of the RRA. It was open to the RRA to have regard to the
extent of previous offending, and it was open to the
RRA not to treat Mr Zanzoul's
work skills as so significant as to influence the assessment of the public interest.
Accordingly, failure to have regard to these
matters as an allegedly relevant
consideration cannot constitute an error of law.
Failure to undertake a proportionality assessment
[214] The fourth ground of appeal was that the RRA had erred in law by not
undertaking an assessment of proportionality, claimed
to be required at common law.
Although Mr Ellis did not explicitly articulate how the proportionality assessment
should have been
undertaken, it was implicit that, because of the finding under the
first limb of s 47(3) that Mr Zanzoul's removal from the country
would be unduly
harsh or unjust, then proceeding to require his removal would be disproportionate to
pursuit of the aim of maintaining
the integrity of New Zealand's immigration law.
[215] To the extent that anything might have been added to this argument on the
appeal when considered within the challenge under a judicial review, I note that the
failure to undertake a proportionality assessment
was also pleaded as the third
ground in the first application for judicial review. I have declined leave for parts of
that proceeding,
including this claim. The scope of the substantive argument
available will be the same, whether raised on appeal or in an application
for judicial
review.
[216] However, material distinctions may arise at the outset in establishing a basis
for challenge, and at
the end if the Court needs to consider relief, depending on
whether the context is in appeal or in review. The High Court's jurisdiction
in
judicial review is a supervisory one, essentially limited to the lawfulness of the
exercise of statutory powers. Without necessarily
impugning a decision for a failure
to undertake a proportionality analysis, a Court on review might grant relief if it
were persuaded
that the outcome was an unreasonable one in administrative law
terms. Conceptually, that outcome could be produced by various measurements,
including that the result was disproportionate to the appropriate solution reflecting
the statutory aims. On the other hand in an
appeal, the burden on an appellant is to
demonstrate that the original decision-maker was obliged to undertake a
proportionality
analysis, and failed to do so.
[217] Here, Mr Ellis assumed the burden of establishing that the RRA was
positively obliged to undertake
a proportionality analysis, not merely that it
produced a result which, on review by the Court, should be treated as flawed because
of the absence of proportionality.
[218] There has been extensive consideration by the Courts of the prospect of
applying a proportionality
analysis to the correctness of decisions in the immigration
area. There is presently a measure of uncertainty, given the comments
in the two
recent Court of Appeal decisions in Ye v Minister of Immigration [2008] NZCA 291
and Huang v Minister of Immigration [2008] NZCA 377, discussed in detail below,
and given that appeals from both those decisions have been argued in the Supreme
Court with a decision
pending. Counsel in the present case did not suggest that I
defer my decision pending the result of those appeals to the Supreme
Court, and I do
not consider it appropriate to do so.
[219] Within the jurisprudence on proportionality, Mr Ellis has in his favour
the
recognition that the relative intensity of review will be greater when judicial review
relates to matters affecting fundamental
human rights. Removal from New Zealand
under the Act of persons wishing to stay here is clearly among the categories of case
warranting
the most intense level of review.
[220] Mr Ellis acknowledges, as he must, that the New Zealand Courts have
generally been reluctant
to embrace proportionality as a distinct head of review,
notwithstanding what is now a relatively settled acceptance of it in cases
in the
United Kingdom. On this, I agree with the observations of Wild J in Wolf v Minister
of Immigration [2004] NZAR 414, distinguishing the position in the United
Kingdom as operating in a different legislative and human rights environment. That
basis
for distinction was acknowledged in the Court of Appeal decision in Huang at
[64].
[221] In administrative law, context remains
everything. If one treats the
United Kingdom authorities as recognising proportionality as an appropriate tool
where relatively
intense levels of review are justified because matters of fundamental
human rights are involved, such an approach must still be tempered
by the terms of
the statutory power, the exercise of which is going to be measured against some
expectation of proportionate outcomes.
Here, the test applied under s 47(3) requires
the evaluation of two limbs. The first provides for recognition of the relative extent
of hardship imposed on the appellant, and those directly affected by his removal
from New Zealand, requiring exceptional circumstances
of that type to warrant the
prospect of reversing the requirement for removal.
[222] The second limb of s 47(3) then balances that
assessment of individual
circumstances, against the broader public interest in allowing someone to remain
who the law otherwise requires
to be removed from New Zealand. In those cases
where the first limb of the test favours the appellant, the second directs a broader
perspective to balance the circumstances of the individual against the public interest.
That constitutes a proportionality assessment
on its own terms. A paraphrasing of
the second limb might well be expressed as whether all factors relevant to the public
interest
in enforcing the law that requires the appellant's removal, if upheld, would
be disproportionate to the recognised adverse consequences
for the appellant, as
evaluated under the first limb of s 47(3).
[223] Accordingly, even within the more usual context of judicial
review, if the
relative intensity of review appropriate to matters involving human rights was to
embrace a notion of proportionality,
then there must be an issue that s 47(3) already
has its own form of proportionality analysis. Therefore the justification
for
superimposing any other proportionality test must surely require greater justification
than might arise in other human rights
contexts.
[224] There is a further aspect that makes reliance on proportionality even more
ambitious in the present proceedings,
than in the judicial review context in which it
arose in Ye and Huang. Mr Ellis has sought to attribute to the RRA an obligation
to
consider its decision by reference to a proportionality test. As a statutory body, it
was obliged to arrive at its decision by
application of the two limbs in s 47(3).
Mr Ellis's argument is that a proportionality test reflects the right recognised in s 9
of BORA, and is therefore to infuse the approach the RRA adopts to the two limb
test. However, I have already found that s 9 does
not avail Mr Zanzoul because the
protection it provides is already catered for within the tests under s 47(3), and s 9
could add
nothing.
[225] In the judicial review context, appellants seek to invoke proportionality as a
means of testing the lawfulness of
the outcome procured by the statutory decision-
maker, so that it constitutes one measure by which the Court on review assesses the
lawfulness of the exercise of the statutory power. Mr Ellis's argument would require
the recognition of proportionality as part of
the primary analysis under the statute.
[226] It is even less tenable to impute to the RRA a proportionality overlay on the
application
of the test under s 47(3), than it is to subsequently measure the
lawfulness of an RRA decision on review, by applying a proportionality
test to it.
[227] I am also satisfied that the analysis on proportionality in judicial review, as
reflected in Ye and Huang, could
not alter this outcome.
[228] Ye involved an appeal by two families against decisions of the High Court
dismissing applications
for judicial review of removal orders. The judgment of
Glazebrook J includes acknowledgements that as the case involved fundamental
human rights
of children, it is one where the Court should apply the standard of
"anxious scrutiny". Having acknowledged academic analyses urging
proportionality
reviews as a replacement for Wednesbury unreasonableness, and United Kingdom
decisions adopting a proportionality
analysis, Her Honour observed:
For myself, I have doubts that merely upholding immigration policy could
ever be proportionate
to breaking up a family, without there being other
public interest factors involved, such as may arise in deportation cases
or
those involving revocation of permits. ([312])
[229] That approach would suggest that a proportionality analysis might
be
warranted, at least in circumstances where interests of children are prominent.
[230] The second decision in Huang involved
similar circumstances of dismissal by
the High Court of applications for judicial review of decisions declining to interfere
with
removal orders. The judgment of William Young P and Hammond J
acknowledged the approach of Glazebrook J in Ye as affording
some support for the
argument that a full proportionality review should replace the standard grounds for
administrative law review
(see [62]). After endorsing Wild J's observation in Wolf
to the effect that United Kingdom precedents cannot be directly applied
because of
the different legislative and human rights environment, the judgment of Their
Honours continued:
[65] It is
in any event difficult to see how an undiluted proportionality
approach could be adopted at the s 47 stage of the process,
given the
weighting which is implicit in the language of the s 47(3) test. Further, the
whole point of a proportionality
analysis is to permit the Court to review the
balance struck by the primary decision-maker between the conflicting
considerations and thus to specify the weight to be attached to the different
interests. But this Court expressly held in
Puli'uvea that it did not have the
right to engage in such an exercise in relation to the humanitarian interview,
see
the passages cited in [39] above. Instead the Court in that case simply
adopted the orthodox administrative law approach.
[231] The judgment continued:
[67] As to intensity of review, we therefore propose to follow the
approach adopted
in Puli'uvea. The Court should ensure that the best
interests of an affected child were genuinely taken into account as a
primary
consideration but beyond that, how conflicting considerations are weighed is
for the decision-maker and not
the Court unless unreasonableness
considerations can be successfully invoked.
[232] Until delivery of the Supreme Court judgment
on the appeals in those cases,
that represents the current state of the law on the approach to proportionality in
applications for
judicial review arising in circumstances such as the present. I would
be comfortable adopting it for a judicial review analysis in
the circumstances of the
present case. The RRA's decision in this case is unusual in recognising that the first
limb of the test
in s 47(3) had been met, but that the constraint created by the second
limb did apply to prevent a reversal of the removal order.
In terms of the Court of
Appeal's approach in Huang, the relative weight of the public interest factors
appropriately considered
under the second limb was a matter for the RRA. Mr Ellis
did not contend that the decision was an unreasonable one in the administrative
law
sense, and that is understandable, as the mode of application of the two limbs of the
s 47(3) test could not be challenged as
unreasonable. Since there is a form of
proportionality embedded in the two limbs of the test, some overlay of
proportionality could
only be justified if the law had advanced to the point that
proportionality was a regularly applied, stand alone basis for asserting an error of
law.
[233] Accordingly, I find that the RRA
did not err as a matter of law in the present
circumstances, by failing to supplement its assessment by the application of some
form
of proportionality test.
Summary on grounds of appeal and first judicial review
[234] The conclusions on the various challenges
to the RRA's mode of application
of s 47(3) were summarised at [180] above. Except for the non-disclosure of
prejudicial
material (see [78] to [98] above), and overstatement of the test on the
public interest (see [164] and [168] above), I have dismissed
all the remaining
grounds of appeal. To the extent that the errors I have upheld were also criticised in
the first application for
judicial review, then, if I was wrong to decline leave to file
that application out of time, these would have been successful challenges
in that
context as well. To the extent that other grounds raised in the first application for
judicial review overlapped with challenges
raised unsuccessfully in the appeal, I am
satisfied that those arguments would be similarly unsuccessful.
The second application
for judicial review
[235] The first to fifth grounds of review in the second application sought various
declarations, including
confirmation of alleged inconsistency between certain
statutory provisions and either BORA or ICCPR. It was also argued
that the
respondent is estopped from pleading that ICCPR is not a part of New Zealand law,
and that prohibiting a grant of legal
aid for such proceedings as provided by
s 10(1)(a) of the Legal Services Act 2000 was a denial of access to the Court (see
summary,
paragraph [20] above).
[236] None of the declarations sought on the first to fifth grounds of review, if
granted, could have any
direct bearing on Mr Zanzoul's attempts to remain in
New Zealand. At best, they might add weight to initiatives beyond the scope
of
Court proceedings, such as seeking to bring political pressure to bear in making
further pleas that Mr Zanzoul be permitted to
remain. The claims are attacks on the
broader context in which the law in New Zealand deals with persons in situations
such as Mr
Zanzoul's. More particularly, in jurisdictional terms they do not allege
the exercise of a statutory power in relation to Mr Zanzoul's
position, that is cited as
the basis for reconsideration by the Court. The claims lack the nexus connecting the
exercise of a specific
statutory power to the predicament complained of by
Mr Zanzoul that is necessary to invoke s 4 of the Judicature Amendment Act 1972.
[237] The character of these grounds of review are to be analysed on the terms of
their pleading. However, there is no avoiding
the categorisation of them expressed
by Mr Ellis in correspondence with the Legal Services Agency that he provided to
the Court.
From a response to advice that a legal aid application for the second
application for judicial review had been declined, Mr Ellis
commented:
Whilst it is filed as a judicial review, and called a judicial review out of
convenience, it is really
a combination of judicial review and constitutional
challenge of matters of public importance.
[238] Some care is required
to ensure that the Court does not exceed its supervisory
jurisdiction in judicial review. Both the Court's long-standing inherent
jurisdiction,
and its conventional statutory manifestation in the Judicature Amendment Act are
founded on the ability of the Court
to review the lawfulness of the exercise of a
statutory power that has been undertaken by a person or entity authorised to do so,
under a New Zealand statute. Matters of "constitutional challenge" cannot be
entertained in abstract. Here, the declarations
sought do not depend on any allegedly
unlawful exercise of a statutory power. Rather, the criticisms relate to the terms in
which
the New Zealand legislature has promulgated legislation. That is beyond all
of the inherent jurisdiction, the Judicature Amendment Act and the Declaratory
Judgments Act 1908.
[239] The
extent to which the matters of concern reflected in the first to fifth
grounds of review remain in the abstract is illustrated by
the fact that Mr Zanzoul did
not make any application for legal aid in respect of the appeal, his advisers
recognising that aid was
unavailable by virtue of the terms of s 10(1)(a) of the Legal
Services Act. An application was pursued in respect of the application
for judicial
review, but declined on the ground that the Agency was not persuaded that the
applicant had any reasonable grounds for
pursuing those proceedings. Therefore this
is a situation in which the litigant accepted that the Legal Services Act did not afford
any basis for granting aid for the appeal proceedings. The complaint is brought
against the terms of the Act rather than its mode
of application by the statutory
decision-maker, as demonstrated by the absence of any application.
[240] The Courts in New Zealand
have in recent years been pressed to provide
declarations of inconsistency between the provisions in BORA, and other domestic
statutes.
The high-water mark of potential recognition of such relief is the dissenting
judgment of Thomas J in R v Poumako [2000] 2 NZLR 695 where His Honour
observed that nothing less than a formal declaration (of inconsistency) will suffice to
maintain the constitutional
integrity of BORA (paragraph [86]).
[241] Much more recently, the Court of Appeal in Boscawen v Attorney-General of
New Zealand
[2009] 2 NZLR 229 recognised a range of factors counting against
there being jurisdiction for the High Court to make a declaration of inconsistency
in
the abstract. The point did not have to be resolved in a finite way in that appeal, and
so was notionally left open (see paragraphs
[50] to [55]).
[242] Another theme of the extensive arguments advanced for Mr Zanzoul on these
grounds of review was the alleged
failure of the New Zealand Government to
embrace the provisions of ICCPR, as if it were a domestic statute, to the extent of
requiring
primacy to be given to it in any circumstances where its provisions were
inconsistent with those of any domestic statute.
[243]
After the hearing had concluded, Mr Ellis sought to reinforce the case for
determining the present issues by reference to international
pronouncements of
standards by referring the Court to two further sources of encouragement to do so.
The first was the 210 page judgment
of the Victorian Civil and Administrative
Tribunal in Kracke v Mental Health Review Board & ors [2009] VCAT 646. The
second was the concluding observations of the United Nations Committee Against
Torture issued in an advanced, unedited version
on 14 May 2009.
[244] Mr McCarthy has filed a short Memorandum dated 5 June 2009, opposing
these post-hearing submissions being
taken into account. He relies on the very
narrow scope for the necessary leave to be granted only in exceptional circumstances
(Practice
Note [1968] NZLR 608) and, among other things, submits that these
further materials could not add materially to everything that had already been
submitted.
That ground for opposition requires the further material to be assessed in
a preliminary way, and I have done so.
[245] I am not
satisfied that these sources add anything to the position, being one in
which, even if jurisdiction did exist, the Court ought not
to recognise this as an
appropriate situation in which to give an abstract declaration of inconsistency.
Accordingly, leave is declined.
[246] Mr Zanzoul has succeeded on grounds arising directly out of the terms on
which his appeal was dealt with by the RRA, so discussion
on this point is academic.
Regardless, however, I am disinclined to afford any measure of recognition to the
argument that the statutory
context within which Mr Zanzoul was dealt with in
New Zealand is, in some abstract way, inadequate, or in derogation of obligations
owed to him since he became unlawfully in New Zealand in terms of his status under
the Act. Caution is well justified when the constitutional
consequences of any such
declaration of inconsistency in abstract have not been fully identified, let alone
argued. The grounds
for caution are well recognised (see, for example,
paragraph [54] of the Court of Appeal decision in Boscawen), and the full
consequences
of assuming such a jurisdiction should await a situation where the
relief is critical to the litigant, and the context better able
to be assessed and debated.
[247] Accordingly, had there been jurisdiction to entertain these claims under s 4 of
the Judicature
Amendment Act, I would have declined the declarations of
inconsistency sought in the first to fifth grounds of review of the second
application
for judicial review.
[248] The sixth to eighth grounds of review in the second application for judicial
review challenged
the constitution of the RSAA and the RRA. Those causes of
action are caught by s 146A of the Act, and I have declined to grant leave
for them to
be brought, on the basis that they are very substantially out of time. Having heard
the argument in support of, and in
opposition to, those causes of action, I am
comfortable as a matter of preliminary assessment that there appears to be no tenable
basis for those arguments. Mr Ellis recently argued challenges to the constitution of
the Parole Board in comparable terms, and was
entirely unsuccessful in the case of
Miller v New Zealand Parole Board and Attorney-General (2008) 24 CRNZ 104
(HC). The criticisms of that judgment, which Mr Ellis foreshadowed as the points
he is likely to pursue on an appeal from it, did
not raise for me any realistic prospect
that the approach of MacKenzie J in Miller is in any way incorrect.
Costs
[249] Mr Ellis
has succeeded on two discrete points, argument on which occupied a
very modest part of the hearing. Further, I acknowledge that the
cross-appeal was
entirely unsuccessful, although again argument in opposition to it was not a focus of
Mr Ellis's arguments.
[250]
By far the largest part of the hearing was taken up with various repackaging
of arguments run in other cases, consistently without
success. All those arguments
needed a response in the written submissions filed on behalf of the respondent prior
to the hearing,
although I was able to indicate that counsel for the respondent did not
need to traverse the detail of some parts of those written
submissions.
[251] Adopting the most generous approach possibly justifiable to the Court's
discretion on costs in such circumstances,
I consider Mr Zanzoul is entitled to no
more than an award of costs as if for a one day hearing, with no allowance for
interlocutory
appearances or other steps, and no certification for second counsel. I
accordingly award costs as if for a one day hearing in accordance
with 2B scale, in
favour of the appellant.
Dobson J
Solicitors:
Marshall Bird & Curtis, Auckland for appellant/applicant
Crown Law Office, Wellington for respondents
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2009/687.html