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Palei v Minister of Immigration [2013] NZIPT 600056 (12 July 2013)

Last Updated: 3 November 2013

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND

[2013] NZIPT 600056

AT AUCKLAND

Appellant: PALEI, Sililo

Respondent: THE MINISTER OF IMMIGRATION Before: C M Treadwell (Chair)

G D S Taylor (Member)

Counsel for the Appellant: D Rajapakse Counsel for the Respondent: K England Date of Hearing: 2-3 May 2013

_{Date of Decision: 12 July 2013}

_DECISION

INTRODUCTION

[1] This is an appeal against liability for deportation on humanitarian grounds by the appellant, a citizen of Tonga, under section 206(1)(c) of the Immigration Act

2009 (“the Act”) on the ground that he has been convicted of an offence for which the court has the power to impose imprisonment for a term of two years or more if committed at any time no later than five years after he first held a residence permit (see section 161(1)(b) of the Act).

[2] The core of the appeal is whether the relationship of the appellant with a New Zealand citizen and with his New Zealand citizen son, together with the support and mentoring he will have from a step-uncle and a former teacher of his, mean that it is unjust or unduly harsh that he should be deported.

THE APPELLANT’S CASE

[3] The Tribunal heard evidence from the appellant, his mother, the mother of his child, and a former teacher of his at Glenfield College. It also received a report from a clinical psychologist, Greg Woodcock. This section sets out the evidence in favour of allowing the appeal. Analysis of the evidence is made later in the decision.

Evidence of the Appellant

[4] The appellant was born on 3 February 1993 in the village of Longoteme, in Tonga. He never knew his birth father. He is the middle of three children. When he was three years old, his mother left Tonga for New Zealand. He and his siblings were raised by his maternal aunt, Maliana, and her husband. They had eight of their own children, all but one of them older than the appellant, so money was limited. One consequence of this was that he was withdrawn from school when he was 10 years old. Although the appellant says that he enjoyed life as a child, he also says that he felt like an outsider in his aunt’s family.

[5] When the appellant was 14 years old, his mother returned for the first time to Tonga to visit. She now had permanent residence in New Zealand and had married. She brought all her three children back to New Zealand with her, arriving in August 2007. The aunt who had brought him up and her family came to New Zealand some time after the appellant did, but he is not sure when. They settled in Papakura. Since the appellant and his mother lived on Auckland’s North Shore, the two families did not see each other much. On arrival in New Zealand, the appellant lived with his mother, step-father and their four, now five, children. The appellant describes himself as particularly close to his elder brother, Siona, and also close to his half-siblings, although he is not specially close to any of them. The eldest of his step-father’s brothers is now living with his mother and step- father.

[6] The appellant was sent to school at Glenfield College for years 9-12, starting in 2008. Because the appellant at first had no English language and had not been at school for four years, he found school work difficult. He was assisted by several Tongan students in his class, but was still challenged by academic work. He did, however, excel at rugby and all sports. He played for the College First XV from his first year at Glenfield College. The First XV coach was James Johnson who gave evidence to the Tribunal.

[7] Glenfield College operates a “Services Academy” which provides an alternative to ordinary school and aims to prepare students to join the police and armed services. The appellant was part of the academy for the last two years of the four years in which he attended Glenfield College. The Academy was directed by James Johnson. Part of the Academy course was voluntary assistance in community activities. For the appellant, this involved coaching youngsters at rugby, refereeing games and assisting with sports equipment in schools.

[8] The appellant told the Tribunal that he met his co-offenders on rugby occasions. Although they did not play and went to other schools, he had met them first at after-match functions. He had known them for two years by the time of the offences that led to the deportation liability notice (“the index offences”).

[9] The appellant started drinking when he was about 16 or 17. He did not drink at home (“They wouldn’t have allowed that”), but he drank when out with friends, using other peoples’ money. On these occasions he would drink six to eight beers. He sometimes drank with his co-offenders.

[10] On the occasion of the index offences, on 5 March 2011, the appellant had been drinking with his co-offenders when they met the victim and his companions. They drove around in the victim’s car, with the victim driving. The appellant had bought a box of ready-to-drink alcohol. All but the victim were drinking. The appellant denies that drinking alcohol makes him aggressive and maintains that the aggression on this occasion was a unique occurrence.

[11] The violence occurred when the victim wanted to go back to his car to get more cigarettes. The offenders were walking behind the victim when one of the appellant’s co-offenders suggested stealing the victim’s car, as they wanted to do the driving. The appellant was asked by the Tribunal what gave him the idea to steal the car, as had never stolen anything in the past. His reply was that he was not thinking at the time. He said that they attacked the victim in order to steal the car, but could give no reason why they did not just take it - since they were three males, and two of the others were school-age girls. Violence seemed the easiest way to take the car.

[12] The Tribunal asked the appellant about his previous statement that he was led on by his co-offenders because he was frightened of them, and had tried to stop them, in contrast to the sentencing Judge’s view that he was the leader. The appellant accepted that he was not afraid of his co-offenders and that he had put this in a letter written from prison with the assistance of a fellow inmate, at that

person’s suggestion. He maintains that he had been led on by his co-offenders (he had got caught-up in the “acceptance thing” of friendship with the co- offenders), but accepts that he had agreed to strike the first blow, and had taken part in the ensuing beating of the victim without trying to stop the others.

[13] The appellant was arrested soon after the offences. He pleaded guilty to all charges following committal for trial on indictment, and was convicted. He was sentenced on 19 December 2011.

[14] While in prison, the appellant has completed a Foundation Learning course in English and had made progress in both oral and written language. He has completed a Care New Zealand course in drug and alcohol therapy.

[15] The appellant spoke to the Tribunal about his relationship with Emma Hughes, (the mother of his son, who is now aged about 18 months). He acknowledges that his relationship with her had broken up as soon as he came to know that she was pregnant. At that time, the appellant believed that she had been having an affair with another, and he had had an affair himself. As the pregnancy developed, however, the appellant became involved with supporting Ms Hughes, notwithstanding his then doubts about paternity. After the boy was born, and he saw him, the appellant accepted his paternity. He and Emma had had similar experiences of absentee fathers in childhood. They have decided that their own futures lie together in the interests of their son. He describes the two of them as “reconciled” and intending to live together. This situation, he accepts, is of only very recent origin (three weeks as at the time of the hearing). He acknowledges that they have had no experience of living together. This intention replaced his previously stated one that he would live with his mother and stepfather.

[16] As to future employment, the appellant had originally intended to join the army, but now accepts that his convictions almost certainly close off this avenue. He had expressed an interest in carpentry while in prison. At the time of the hearing, the appellant saw catering as his career aim. His step-uncle (who gave evidence to the Tribunal) had, before the offences, taught him cooking skills and he enjoyed the work. This step-uncle is also willing to try to organise a job for the appellant as a cleaner and orderly in a hospital. The appellant would accept such employment.

[17] The appellant wants to return to playing club rugby or league. He recognises the danger to him of the drinking culture surrounding these sports. His plan of self-defence is to avoid being with the drinkers.

[18] So far as the appellant knows, he now has no relations back in Tonga. He does not know how many aunts and uncles he has, though there are several, but none of them are in Tonga. If he returns there, he has no means of support, no home (his aunt having now moved to New Zealand) and little prospect of finding work.

Evidence of the Mother of the Appellant’s Child, Emma Hughes

[19] Emma Hughes is a solo parent aged 18 years. She is on a benefit but is actively looking for work. She does not want to work with food, but would work at anything else.

[20] When she first met the appellant at school, Ms Hughes was living with her mother a street away from the appellant. They met and spent time together every day. When she became pregnant, the school asked her to leave, in order to protect the school’s reputation and to prevent bullying. Since leaving school, she had studied applied cosmetics. She does not get on well with her mother who, she thinks, does not care about her. She rents an apartment some distance away, and lives there with her son. Her evidence on her break-up with the appellant supports that given by him.

[21] When asked by the Tribunal about the appellant’s actions when drunk, Ms Hughes said that she had seen him acting aggressively, but never against her. She said that she would support the appellant in any commitment he made to abstain from alcohol, and she is prepared to come to the rugby clubhouse to support him in not drinking.

[22] Ms Hughes has no family support other than from the appellant’s family, to whom she relates well and who visit her regularly. Her two half-sisters live in Wellington and her father in Australia. In her oral evidence, she volunteered that she has been depressed “as long as [she] can remember.” She has dealt with this in the past by using alcohol, but is now under medical care and being treated with appropriate medication.

[23] Ms Hughes did not want to make contact with the appellant’s family after

the appellant’s conviction, because she was angry with him. Later, when she

wanted to contact the appellant, she had difficulty in finding out where he was and also had difficulty in actually making contact with the appellant’s mother. Eventually, she made contact and now sees the appellant’s family regularly. Three weeks before the hearing, she and her son accompanied the appellant’s family when they visited the appellant.

[24] Ms Hugh’s affidavit, dated 18 April 2013, was written before the reconciliation referred to in paragraph [15] above. In the affidavit, she described herself as the appellant’s “ex-partner”. She deposed to her wish that the appellant be part of their son’s home life. She would provide the appellant with a home. The appellant, she deposed, was a good man who had made “a couple of bad mistakes”.

[25] As to why she thinks that her relationship with the appellant would be more stable than before, Ms Hughes believes that prison had changed the appellant. He is more mature. Asked about the relationship if he started drinking again, she said that she is “determined” to support the appellant. She will support him, and she believes that he will listen to her. Ms Hughes illustrated her view by telling the Tribunal in re-examination about the dressing-down she gave the appellant after he told her of his offending.

Evidence of the Appellant’s Mother, Malia Telefoni

[26] Mrs Telefoni left Tonga because she was searching for a better future for herself and her children. She knew that her sister would bring the children up well. Mrs Telefoni confirms that the sister who brought-up the appellant is now in New Zealand but states that it was her sister Funaki who brought-up the appellant, not Maliana. Funaki comes to visit her once a month or thereabouts. Asked why the appellant said that the aunt was Maliana, and that he seldom now meets the aunt who brought him up, she said that he “forgets things”. Further, Mrs Telefoni states that Maliana has been living in Australia for 10 years. Mrs Telefoni says that she has no relatives left in the village in Tonga – only a distant cousin with whom there was no relationship. Nor, she said, does her husband have any relatives in Tonga.

[27] Mrs Telefoni ascribes the appellant’s offences to his “hanging around” with the “wrong crowd” and trying to be accepted by them. She accepts that she was not aware that the appellant had been drinking, and knew only that he stayed out late sometimes. She and her husband do not drink alcohol.

[28] In New Zealand the appellant had helped to look after the younger children, and helped to cook, clean, and maintain the house. Mrs Telefoni confirmed that the appellant has a good relationship with her husband and does what he is told by his stepfather. She says that, if the appellant were allowed to stay in New Zealand, she believes that he would come back home after release and stay with them. She would make sure he goes to church. The appellant’s and Ms Hughes’ evidence of wanting to live together was put to Mrs Telefoni. She acknowledged that this was likely and said that her own house is always open to her son. If he lives with Ms Hughes, then she would take both of them, as well as their child, to church with her. Her view is that, as a result of his imprisonment, the appellant has learned a valuable lesson and will make wiser and better decisions in the future.

[29] If the appellant were deported, Mrs Telefoni would be unable to assist him. With four children at school and her husband staying at home to look after their youngest child, there is no money to spare to send to Tonga for the appellant. She earns $500 a week after tax, and receives $300 under Working for Families. Nor does she know anyone in Tonga who could assist him.

Evidence of the Appellant’s Step-Uncle, David Telefoni

[30] Mr Telefoni is the eldest son in his family. He has always taken it as his responsibility to care for his younger siblings and their families, including the appellant and his siblings. For this reason he had been very involved with the appellant, teaching him English and discipline. He knew this would be a challenge, but never gave up on the appellant. He does not intend to do so now. It was he giving evidence and not his brother, the appellant’s stepfather, because this was part of his responsibility as the eldest male in the family.

[31] Mr Telefoni accepts that he was not aware that the appellant was drinking, but he suspected that he was. He had asked the appellant’s elder brother to talk to the appellant and stop him drinking. When it was pointed out to him that this had not worked, he also said that the appellant forgot things. He went on to say that this happened when the appellant was left to himself, but in a team situation he did not forget. The team situation included cooking. Mr Telefoni thinks that the appellant could do well in a career in cooking.

[32] The appellant’s need to be occupied in a team environment is why he wants to try to get the appellant employed at North Shore Hospital, where Mr Telefoni is the team leader, Non-critical Department Orderlies and Cleaning. He has

126 people in his team. The appellant’s mother is one of the members of his team, working as a cleaner. Although he does not have the power to hire staff, he believes that his recommendations are very influential. He is prepared to recommend employing the appellant if he is allowed to stay in New Zealand. The appellant would have to start as a casual employee, probably part-time at 20 hours a week, but when there is a permanent vacancy the appellant may be able to be appointed permanently. Permanent appointments are publicly advertised. This early employment would keep the appellant away from bad company and allow Mr Telefoni to continue to mentor him.

[33] Mr Telefoni spent time in Tonga in 2011 trying successfully to get back his family land. The land is, he says, bare land with no plantation or other development.

[34] If the appellant were deported, Mr Telefoni believes that the cost of living in Tonga is such that he could not survive by himself. On his own trip in 2011, he had spent $1,000 a week. Mr Telefoni has no relatives in Tonga who could help the appellant. Mr Telefoni’s own pay of $800 a week after tax is shared with the appellant’s mother and step-father and, after the family’s expenses, this left “hardly anything” that could be sent to the appellant if he were to be sent back in Tonga.

[35] Mr Telefoni is aware that there are a lot of Tongan deportees from the United States of America back in Tonga. He anticipates that if the appellant were deported, he would end up associating with them, homeless on the street and committing crimes.

Evidence of the Appellant’s Former Teacher, James Johnson

[36] Mr Johnson started teaching at Glenfield College the year before the appellant started there. He still teaches at the College.

[37] Mr Johnson described the way the Services Academy operated. There are Services Academies at over 20 high schools in New Zealand. The aim is to identify disengaged students and bring them up to the standard needed for the disciplined forces. He used the word “demanding” to describe the Academy’s course in discipline and fitness. The first year in the course involves a 12 day induction course with the army. The report on the appellant had been good, but he had been let down by his poor English. Mr Johnson believes that, had the appellant completed another year in the academy and not been arrested and imprisoned, he would have progressed in English far enough for him to have been

accepted into the army as a rifleman. Although he cannot be certain, he considers that the appellant’s convictions now make it most unlikely that he would be accepted by the army.

[38] Mr Johnson was aware of the appellant’s drinking. While not condoning this, he considered that his role was not to interfere, so long as the appellant came to school sober and clean. He had thought that the appellant’s time in the Academy would have prevented the appellant committing the index offences. He was surprised that he had committed them. This had led him to think twice about giving supporting evidence for the appellant. He decided to do so because he still believes that the appellant has potential and believes in giving people a second chance. He has made it a condition of his giving evidence that the appellant cease to drink alcohol. This was a promise that he intended to help the appellant to keep.

[39] Mr Johnson wants to see the appellant stay playing rugby but he acknowledges the drinking culture that surrounds the sport. He says that the local Glenfield Club is known for its drinking culture. He has therefore approached another Club, which does not have a drinking culture. A coach at the Club has agreed to help the appellant in staying away from drink at the Club.

Report by the Clinical Psychologist, Greg Woodcock

[40] Mr Woodcock’s report, dated 16 May 2013, is based on a clinical interview of the appellant and psychometric tests administered, interviews with Malia Telefoni, David Telefoni, Emma Hughes and James Johnson, together with the documents in paragraphs [43] and [44](a) and (b) below, the summary of facts for the appellant’s sentencing, and four certificates for courses completed by the appellant (Foundation Skills, Exercise and Fitness, Stepping Forward - the drug and alcohol treatment programme by Care New Zealand, and Get Smart Training).

[41] Mr Woodcock considers that the appellant is forthcoming and honest. After summarising the appellant’s personal history which included physical violence against him when a child, he expresses the view that the appellant “regularly” abused alcohol, was led by his friends who introduced him to alcohol, and that it was drinking with this group of friends that resulted in the index offending.

[42] The report describes the psychometric tests administered (the Buss-Durkee Hostility Inventory, the Michigan Alcoholism Screening test, and the Hare Psychopathy checklist). Mr Woodcock concludes that the appellant is a

“neurotically hostile individual” who is unable to cope with various environments in which he finds himself. He scores sufficiently highly in the Alcohol Screening test to be considered as an alcoholic. When drunk, he is likely to give “aberrant expression to his anger and act violently”. If alcohol free, the appellant has a low likelihood of re-offending, but the risk of violence “increases exponentially when intoxicated”. Mr Woodcock is concerned that the appellant’s memory of his offending and its consequences would dissipate over time and he might drift back to drinking. He recommends that the appellant attend the Salvation Army Bridge program for young Pasifika with alcohol problems.

Documents and Submissions

[43] Before the hearing, the appellant provided:

(a) A statement dated 2 May 2013 by the appellant; (b) An affidavit dated 18 April 2013 by Emma Hughes; (c) An affidavit dated 18 April 2013 by Malia Telefoni; (d) An affidavit dated 18 April 2013 by David Telefoni; (e) An undated statement by James Johnson;

(f) An undated pre-sentence report;

(g) The sentencing notes dated 19 December 2011 of Judge Wade;

(h) An undated full parole assessment report for the New Zealand Parole

Board hearing in October 2012;

(i) The decision dated 8 October 2012 of the New Zealand Parole

Board;

(j) Report dated 13 February 2013 on the appellant’s progress while in

prison;

(k) A Case Management Activity Progress Form dated 8 March 2013;

(l) Undated Care New Zealand report on the appellant’s alcohol

treatment programme at Hawkes Bay Prison.

[44] After the hearing, the appellant provided:

(a) A further Parole Assessment Report dated 28 March 2013 for the

New Zealand Parole Board;

(b) The appellant’s full criminal and traffic conviction history;

(c) Psychological report dated 16 May 2013 by Greg Woodcock, Registered Clinical Psychologist.

[45] Submissions dated 29 April and 27 May 2013.

THE RESPONDENT’S CASE

[46] The Respondent, after the hearing, provided:

(a) Parts of applications for residence by Malia Telefoni and her husband, Palenapa Telefoni relating to the members of their families;

(b) The transitional policy assessment guide relating to that class of application for residence;

(c) Immigration New Zealand records for movement of six of Malia Telefoni’s siblings, Maliana Laui, Talilia Lomano, Falakika, Kapiele, Litia and Sanalio Palei, and Funaki Taulafo.

[47] The immigration movement records produced by the respondent were presented to cast doubt on the accuracy of Mrs Telefoni’s evidence. They show that her sister Maliana first arrived in New Zealand in January 2010 and left in July

2012. Her sister, Funaki, has lived in New Zealand since 1997 and has not left the country since September 2008.

[48] For the Respondent, counsel has lodged submissions dated 26 April and

24 May 2013. The Tribunal has been provided with a copy of the file prepared for the Minister.

STATUTORY GROUND OF APPEAL

[49] The grounds for determining humanitarian appeals against deportation are set out in section 207 of the Immigration Act 2009, which provides:

(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that –

(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

[50] In relation to (the analogous) section 47(3) of the 1987 Act, the majority of the Supreme Court stated, in Ye v Minister of Immigration [2009] NZSC 76; [2010] 1 NZLR 104, that three ingredients had to be established in the first limb:

(a) exceptional circumstances; (b) of a humanitarian nature;

(c) that would make it unjust or unduly harsh for the person to be removed from New Zealand.

[51] As to whether circumstances are exceptional, the Supreme Court noted, in Ye v Minister of Immigration, at [34] that they “must be well outside the normal run of circumstances” and, while they do not need to be unique or rare, they do have to be “truly an exception rather than the rule”. It held further, at [38], that it did not necessarily follow from the existence of exceptional circumstances of a humanitarian nature that it was unjust or unduly harsh to remove a person. While the third ingredient (injustice or undue harshness) has to be considered separately from a finding that there are exceptional circumstances of a humanitarian nature, at the same time the Supreme Court acknowledged, at [36], that there is an “interweaving of the concepts of exceptional circumstances, injustice or undue harshness and the public interest”.

[52] In determining whether the exceptional circumstances of a humanitarian nature would make it unjust or unduly harsh for the appellant to be deported, the Tribunal must weigh the gravity of the offending, and any other adverse considerations, against the compassionate factors favouring the appellant remaining in New Zealand. See Galanova v Minister of Immigration [2012] NZIPT

500426, at [47]-[50].

[53] Where there are family interests at issue, regard must be had to the entitlement of the family to protection as the fundamental group unit of society, exemplified by the right not to be subjected to arbitrary or unlawful interference with one’s family – see Articles 17 and 23(1) of the 1966 International Covenant on Civil and Political Rights (“the ICCPR”). Whether such rights would be breached depends on whether deportation is reasonable (proportionate and necessary in the circumstances) – see the United Nations’ Human Rights Committee’s General Comment 16 (8 April 1988) and the discussions in Toonen v Australia (Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April 1994) and Madafferi v Australia (Communication No. 1011/2001, UN Doc CCPR/C/81/D/1011/2001, 26 August 2004, para 9.8).

[54] Ms England submits that the fact that a person is a resident is not relevant to assessing the paragraphs in s207(1). She also quotes from a case involving the removal of a person in New Zealand unlawfully (Zanzoul v Minister of Immigration (HC Wellington CIV2007-4851333, 9 June 2009 at [162])) to submit that s207(1)(a) is a “very narrow exception to the overall general policy of removing persons who are unlawfully” in New Zealand. Both of these submissions have been made to the Tribunal in the past and have been rejected. The Tribunal does so again for the reasons stated in Close v Minister of Immigration [2013] NZIPT 600028 at [51] and [46] respectively.

ASSESSMENT

Whether Exceptional Circumstances of a Humanitarian Nature

[55] The following relevant considerations arise on the facts.

Permanent resident status

[56] In assessing the weight to be given to any relevant matters, the fact that the appellant is a New Zealand permanent resident is important. The status of permanent resident carries with it a number of rights. These include the right to remain in New Zealand and the right to enter and leave New Zealand. If the appellant is deported, he loses these rights. Further, the status of permanent resident can impact upon other factors, making their humanitarian nature of greater or lesser significance.

The appellant’s personal circumstances

[57] The appellant is a 20 year-old single man with one New Zealand citizen child. He has, three weeks before the hearing, reconciled with his child’s mother. They intend to live together if the appeal is successful. The appellant has not yet been able to establish an emotional relationship with his son. Nor have the appellant and Ms Hughes yet been able to test the strength and stability of their relationship by living together. He is a man with superior skills in sport, particularly rugby.

[58] Mr Woodcock, the psychologist, finds the appellant to be a “neurotically hostile individual” who is unable to cope with various environments in which he finds himself, and alcoholic. If the appellant can abstain from alcohol, Mr Woodcock considers that there is a low likelihood of the appellant reoffending.

[59] Our conclusion from the evidence as a whole is that the appellant has been isolated among his peers by his limited English and further damaged by his interrupted education. This leaves his superior sporting skills as his primary source of achievement and respect for him from his peers. He is easily led by his peers, so that, without continual pro-social reinforcement, he has been led into crime.

[60] This is not a promising start, but the evidence before us is there are positives as well.

[61] First, the appellant is in the position of having two men from outside his nuclear family (Mr David Telefoni and Mr Johnson) strongly committed to continuing to support the appellant and in a position to do so in practical ways.

[62] Mr David Telefoni has been involved closely in the appellant’s upbringing while an adolescent. As he is the eldest male in his family, he sees it as his responsibility to look after the appellant, even though he is no blood relation. This has involved helping the appellant with the English language and instilling discipline in him. It has involved attempting to keep the appellant away from alcohol, which he recognises as the appellant’s downfall. His responsibility extends to trying to obtain employment for the appellant in his 126-strong team of workers, where he can, as it were, keep an eye on him.

[63] Mr Johnson has taken an interest in the appellant throughout the latter’s time at Glenfield College. He has taught, supervised and coached the appellant in the College’s Services Academy and its First XV. He sees the appellant as a man

of potential, but who needs much guidance. He has had to consider carefully whether he should continue to support the appellant, but has concluded that he should – on one condition. This is that the appellant abstains from alcohol. He has shown his commitment to the appellant’s pro-social future by seeking out a rugby club that would reinforce, and not undermine, the appellant’s abstention from alcohol, and arranging a coach to “mind” the appellant at the club. We have found both these men reliable and impressive witnesses.

[64] We will discuss later (at paragraphs [67]-[70]) the role of Ms Hughes in supporting the appellant. We will also discuss later (paragraphs [75]-[77] the position of the appellant’s mother.

Length of time in New Zealand

[65] The appellant has lived in New Zealand just under six years, but has been in prison for two of those years. His still limited English and substantial upbringing in Tonga means, on the one hand, that he would not find life back in Tonga alien to him, but, on the other hand, he would return to a country with no family support, no one to mentor him as he has in New Zealand, and so would be likely to find himself an alcoholic on the streets, as Mr David Telefoni predicted.

Interests of the family

[66] The appellant has a substantial family: his mother, stepfather, two siblings and five step-siblings. He has a son, whom he has yet to get to know. He has a young woman, his son’s mother, expressing commitment to make a life with him.

[67] We have covered earlier the commitment of Messrs David Telefoni and Johnson to try from the outside to keep the appellant on the pro-social path. We have noted the assessment by Mr Woodcock. The evidence shows that the day- to-day burden of keeping the appellant steady in the environments he finds himself, and away from alcohol, will fall on Ms Hughes. We regard the prospects of this relationship as critical for the appellant.

[68] We found Ms Hughes to be an honest, plain-speaking and straight-forward woman with strength and determination. She volunteered her history of depression, even though she must have known that it was not necessarily helpful for the appellant. She has cared for her son without family support for most of her boy’s short life. Finding an old school friend opposite her apartment, she has created a mutually supportive relationship. She shares with the appellant the

experience of a childhood without a father. It is the damage of this experience that makes her determined that their son will not have the same experience. The appellant has been deprived not only of a father’s love, but also, for about eleven years, of a mother’s love. We conclude that they both have a strong commitment to providing their son, and any future children, with a securely loving family home.

[69] Ms Hughes is realistic about the link between alcohol and violence in the appellant and knows that her daily reinforcement of abstaining from alcohol will be the price of realising her aim of that secure, loving family home. As best as it is possible to predict, we conclude that she has the incentive and internal strength to achieve that. She will, of course, have Mr David Telefoni, Mr Johnson, and the appellant’s mother, to support her – as well as the appellant.

[70] Ms Hughes will not go to Tonga with the appellant if he is deported. We see this as realistic. She does not know Tonga. She does not know what it would be like to live a Tongan lifestyle in Tonga as a palani. She will have no family support there. She and the appellant have not lived together, so she cannot say that their relationship is strong enough to cope with this major change in life experience. Deportation will therefore sever this relationship.

[71] Ms England submits that there is no right to family life in New Zealand, citing M v Minister of Immigration [2012] NZCA 489. But when the Supreme Court refused leave to appeal, in M v Minister of Immigration [2013] NZSC 9, [2013]

2 NZLR 1, it expressly left open whether there is a right to family life. Certainly, there is no provision in the New Zealand Bill of Rights Act 1990 equivalent to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, there are Articles 17 and 23 of the 1966

International Covenant on Civil and Political Rights protecting the family as the fundamental group unit of society. On standard authority, Articles 17 and 23 are relevant factors: Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).

[72] It must be remembered that M v Minister of Immigration involved a man with no right of residence in New Zealand, seeking to bring his wife and child here from another country, solely on the claim that they had a right to be together as a family. That is a far cry from the present circumstances, in which if the appellant is to lose his rights as a resident and is deported, a New Zealand citizen (Ms Hughes) is confronted with the choice of going to Tonga (with the difficulties we have discussed) or losing the family unity she wants. In that context, it is unarguable that the right to family unity in Article 23 is a relevant consideration.

[73] The Court of Appeal in Helu v Immigration and Protection Tribunal [2013] NZCA 276 at [51] has stated the law in New Zealand on the question of a right to family life. It held that the jurisprudence on the European Convention on Human Rights, Article 8, and the 1966 International Covenant on Civil and Political Rights, Articles 17.1 and 23.1, is captured by the factors contained in section 105(2) of the Immigration Act 1987. While those factors are not reproduced in section 207 of the 2009 Act, they are contained in the general concept of it being unjust or unduly harsh to deport the appellant. We record that we have addressed the subject matters of the factors that were listed in the old section 105(2) that relate to family life, sometimes explicitly and sometimes as part of other broader considerations.

[74] The position of the appellant’s son is a primary consideration: Convention on the Rights of the Child, Article 3. The interest in him having a father who is present in his daily life has to be given weight appropriate to its position as a primary consideration.

[75] Counsel for the respondent challenges the reliability of the appellant’s mother’s evidence by demonstrating that her evidence about who brought up the appellant was wrong. Counsel does not suggest that she was lying, but that her evidence cannot be relied-upon. We take a more nuanced view. We agree that Mrs Telefoni was incorrect is asserting that the appellant was raised by Funaki, because the evidence establishes that Funaki was not in Tonga at the relevant time. Funaki has been in New Zealand since 1997, only being absent for a total of nine months. She cannot have raised the appellant in Tonga from 1996 to 2007. Maliana, however, came to New Zealand from Tonga for brief periods in 2010 and

2012. It is most likely that the appellant was raised by Maliana, as he claims. As to why Mrs Telefoni would say otherwise, she may have been confused or she may have been trying to conceal the fact that Maliana is not in New Zealand but is still living in Tonga. In either case, the appellant’s lack of knowledge about Maliana in New Zealand is consistent with her not, in fact, being here – something which we accept he may not understand, having been in prison since December

2011.

[76] We also accept Ms England’s point that the evidence of the whereabouts of Mrs Telefoni’s other siblings is unreliable and four of them (Maliana, Kapiele, Sanalio and Tilia) may well be in Tonga.

[77] We do, however, accept that Mrs Telefoni is committed to her children, including the appellant, but that she recognises that he is now an adult; he will live with Ms Hughes if that is what he wants, but her own door will always be open to

him. She relates well to Ms Hughes and, we conclude, will do what she can for Ms Hughes, which is likely to be limited. This relationship will go some way towards filling the gap of Ms Hughes’ alienation from her own mother.

Conclusion on Exceptional Circumstances

[78] Weighing the above, the Tribunal is satisfied that there are exceptional circumstances of a humanitarian nature. These are the presence of Mr David Telefoni and Mr Johnson as persons committed to keeping the appellant on a pro- social role; the strength and determination of Ms Hughes to make a home with the appellant for her son; and the presence of the appellant’s New Zealand citizen son. In combination, these meet the test of exceptional circumstances stated in Ye. They are certainly humanitarian considerations.

Whether Unjust or Unduly Harsh to Deport

[79] The index offending all occurred in one incident when the appellant was 18- and-a-half years old. He was convicted of one count of injuring with intent to injure, one of armed robbery, and one of dishonestly taking a motor vehicle. He was sentenced to two years and six months’ imprisonment on the first two counts and one year on the third, all to be served concurrently. The circumstances of the index offending have been set out in more detail in paragraphs [10]–[12] above. The appellant and his co-offenders had been drinking. Just before the offences occurred, a co-offender suggesting beating the victim up and taking his car. The appellant went along with this plan and agreed to strike the first blow. He participated in the beating that followed.

[80] Balanced against the offending are the exceptional humanitarian circumstances. As identified above, these are the presence of Mr Telefoni and Mr Johnson as persons committed to keeping the appellant on a pro-social role; the strength and determination of Ms Hughes to make a home with the appellant for her son; and the presence of the appellant’s New Zealand-citizen son.

[81] There is no doubt that the index offences were a serious, alcohol-fuelled attack on a young man of 17 who had shown friendship towards the offenders on this, the first time they had met. The victim suffered a brain haemorrhage, a broken tooth, extensive facial bruising and lacerations. He had to see a neurologist and a neuropsychologist. He lost his three part-time jobs, was absent from school for two months and eventually had to leave school altogether. The effect on him has been profound.

[82] We must, however, weigh in the balance the fact that the appellant was not the sole cause of the victim’s injuries. We do not know which ones he caused. The most we can say is that he ought to be held responsible for a third of the injuries and, of course, for being the first person to attack the victim.

[83] We also take into account that the appellant had a spotless record before this incident. He did incur one further conviction (for writing graffiti on a police cell wall while in custody) but that offence was trivial and we do not need to accord it weight.

[84] We accept that the appellant is a young man who has potential but is easily led. For his own good, he requires an environment subject to discipline, and reinforcement of processes and his role in them. We see only one place in which he is likely to find these requirements and achieve something of his potential. That is in New Zealand at home with Ms Hughes.

[85] Should he be deported, we find that the probable consequences are his self-destruction on the streets of Nuku’alofa, the deprivation of any relationship of his son with his father, and the upbringing of his son in a sole parent family.

[86] As to the question whether the appellant would have any family support in Tonga, if he is returned there, the evidence suggests that he may well have. Such documentary evidence as there is indicates that four of the appellant’s mother’s siblings have either never come to New Zealand or last left New Zealand bound for Tonga. We think it likely that there at least four there, including Maliana, though the limited evidence means that we cannot find that they are there on the balance of probabilities. We proceed on the possibility most adverse to the appellant, namely, that they are in Tonga. If so, then there would be some support for him there, though the parameters are impossible to know, given the paucity of the evidence.

[87] We do accept, however, that the usual means of communication between members of a family in different countries (telephone, Skype, letters, travel) will probably not occur. The appellant is unskilled and, at best, may find a place with relatives in a village, tending to a communal plantation. Money is unlikely to feature significantly in his future. He is likely, therefore, to have limited contact with his family in New Zealand. He is particularly unlikely to be able to have any contact with his son, because Ms Hughes, living alone on a benefit, will simply not be able to afford the cost of telephone calls.

[88] Ms Hughes will be left as a solo parent. If the appellant remains in New Zealand, however, there is the greatest prospect that the child will be brought up in a loving and secure two-parent family. It is also likely that the support in place for the appellant will enable him to find respect and security in his home, sport and work. These consequences for the appellant’s child weigh heavily as a primary factor.

[89] Weighing the offending against the exceptional humanitarian circumstances, the Tribunal is satisfied that it is unjust or unduly harsh for the appellant to be deported from New Zealand. It would be unduly harsh for Ms Hughes and particularly for their child.

THE PUBLIC INTEREST

[90] The Tribunal must also be satisfied that it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand. The Court of Appeal has brought together the well-established principles on this, the second limb of s 207(1), in Helu v Immigration and Protection Tribunal [2013] NZCA 276 at [43]. Four principles are stated: (a) it is a control or qualifying consideration added to humanitarian concerns making it unjust or unduly harsh to deport, (b) humanitarian factors are relevant to the limb, but (c) the focus is different and “more sharply” on the community’s interests including risk of re-offending, and (d) it is to be considered in the particular case, not generically.

Risk of re-offending

[91] The risk of re-offending is a primary consideration in terms of the public interest. The degree of risk of future offending which the public can be expected to tolerate varies according to the severity of the offending. The more serious the crime, the lower the chance of re-offending must be, if it is not to trigger an adverse public interest finding. See Pulu DRT 13/2007 (17 July 2007) at [101]– [114], approved by the High Court in Pulu v Minister of Immigration at [12], both at [2008] NZHC 673; [2008] NZAR 429.

[92] The pre-sentence report said that the appellant is at a medium risk of re-offending. Mr Woodcock, in his appropriately balanced report, appears to have put the risk as at least that level should the appellant drink alcohol again. Against the risk of this occurring, he recommends that the appellant attend the Salvation

Army bridge programme. He sees it as desirable that the appellant should not let his memory of the consequences of drinking alcohol fade.

[93] We see Mr Woodcock’s report as being a conditional endorsement of the humanitarian factors outweighing the offences. And this brings us back once more to the Hughes/Johnson/Telefoni team. Ms Rajapakse, counsel for the appellant, seems to have accepted the critical nature of Mr Woodcock’s conditional endorsement and the Hughes/Johnson/Telefoni team. She submits that the appeal should be allowed on condition that the appellant not offend for five years. We will address the question of conditions at the end of this decision. At this point, we reiterate the importance of the Hughes/Johnson/Telefoni team. Having had the opportunity to hear from all three persons, we find that it is more likely than not that it will stand firm and that there is a group of concerned people around the appellant who will provide a sustained network of support and oversight, ensuring that the appellant is kept away from alcohol.

[94] Given this, we find that the risk of the appellant re-offending in like manner is low. In reaching this view, we bear in mind the order we intend to make at the conclusion of this decision, suspending the appellant’s liability for deportation. It will provide every incentive to the appellant to learn to live without alcohol because a further conviction will see him deported without further right of appeal.

Family unity

[95] There is also public interest in the preservation of family unity and in the observance of New Zealand’s international obligations in that regard. As Hansen J held, in Garate v Chief Executive of Department of Labour (HC, Auckland CIV-2004-485-102, 30 November 2004) at [41] (discussing section 63B of the 1987 Act, the predecessor to the later section 47(3)):

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.

[96] Since the appellant has no immediate family back in Tonga, the factor of family unity is predominantly one way. There are two families: Ms Hughes and their child, and the appellant’s mother, stepfather and their joint and separate

children. For the reasons stated in paragraphs [88]–[89] we find it probable that deportation will result in total loss of unity for both families.

Conclusion on Public Interest

[97] Having heard and seen Ms Hughes, Mr David Telefoni and Mr Johnson, we do not doubt their long-term commitment to keeping the appellant on a pro-social path. We think it probable that the “team” will stay firm in at least the medium term, with the consequence that the appellant will not start drinking again and there will be a resulting low likelihood of his re-offending. At the same time, we take heed of Mr Woodcock’s report. We consider that in the public interest, a condition should be imposed that the appellant not re-offend for a sufficient period to assure the public that the appellant is truly at low risk of re-offending. This needs to be long enough that the old patterns are well-broken. Ms Rajapakse proposes five years, and we accept her submission.

[98] Weighing the adverse public interest considerations against the positive public interest considerations, the Tribunal is satisfied that it would not be contrary to the public interest to allow the appellant to remain in New Zealand.

DETERMINATION AND ORDERS

[99] The Tribunal finds:

(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b) it is satisfied that it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

Suspension of Deportation Liability

[100] The appeal being allowed, the Tribunal orders, pursuant to section 212(1), that the deportation liability of the appellant be suspended for a period of five years, subject to the following condition:

(a) The appellant does not commit an offence resulting in imprisonment for six months or more.

[101] The appeal is allowed in the above terms.

“G D S Taylor”

G D S Taylor

_Member

Certified to be the Research

Copy released for publication

G D S Taylor

Member