Fazly v Minister of Immigration

[2017] NZCA 218

IN THE COURT OF APPEAL OF NEW ZEALAND

CA94/2017
[2017] NZCA 218

BETWEEN	MOHAMMED TASLIM FAZLY Applicant
AND	MINISTER OF IMMIGRATION Respondent

Hearing:	15 May 2017
Court:	Kós P, Asher and Brown JJ
Counsel:	M S Sahu Khan for Applicant M J R Conway for Respondent
Judgment:	26 May 2017 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.

B The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Background

1. Mr Fazly is a Fijian citizen.  He married in 2003 and came to New Zealand with his wife in December 2004.  They have two children born in New Zealand in February 2007 and June 2008.  On 6 August 2012 all four were granted residence visas.

2. In July 2012 Mr Fazly was charged with male assaults female, assault with a blunt instrument and injuring with intent to injure arising from violence against his wife.  He pleaded guilty and was sentenced to eight months’ home detention and 90 hours’ community work in October 2012.  Because these charges arose before his residence visa was granted, Mr Fazly was required to disclose them to Immigration New Zealand.  He failed to do so.  As a result, he was liable for deportation under s 158 of the Immigration Act 2009 (the Act).

3. In February 2014 Mr Fazly was convicted of assault and assault with a blunt instrument against his wife, as well as dangerous driving.  He was sentenced to a total of 26 months’ imprisonment.  In the course of investigating Mr Fazly’s 2014 convictions Immigration New Zealand became aware of his 2012 convictions.  As a residence class visa holder, the convictions meant Mr Fazly was liable for deportation under s 161(1)(a)(iii) of the Act.  In November 2015 the Minister of Immigration signed a Deportation Order Liability Notice for Mr Fazly on the basis of his 2014 assault convictions and the non-disclosure of the 2012 charges. 

4. On his release from prison on 23 December 2015 Mr Fazley appealed to the Immigration and Protection Tribunal (the IPT) against deportation on humanitarian grounds, which were, in essence, the interests of his wife and children and the impact deportation would have on his health.  The IPT declined his appeal.[1]  Palmer J dismissed Mr Fazly’s application for leave to appeal on the basis that he had failed to identify a question of law of general or public importance, or any exceptional circumstances, that justified granting leave to appeal.[2] 

Application for leave to appeal

[1]Fazly v Minister of Immigration [2016] NZIPT 600288 [Tribunal decision].

[2]Fazly v Minister of Immigration [2017] NZHC 89.

1. Where leave is refused in the High Court an applicant may reapply to this Court.  Mr Fazly so applies.  To obtain leave to appeal he must establish that the proposed appeal raises a question of law that ought to be decided by the High Court because of its general or public importance or for any other reason.  The focus is on the decision of the IPT rather than an appeal against the High Court decision.[3]

   [3]See SK v Immigration and Protection Tribunal [2015] NZCA 26, [2015] NZAR 335 at [14].

2. Mr Khan for Mr Fazly helpfully submitted seven grounds upon which it was contended the IPT had erred in law.  We briefly address each.

3. There is no sound basis for the first ground, alleging an error of law by a failure to have regard to the interests of Mr Fazly’s family, in particular his children.  The IPT traversed the factual background, the parties’ submissions and the evidence given by witnesses, and carefully considered the circumstances of Mr Fazly, his wife and his children separately.[4]  A reference to “genuine and meaningful” consideration does not advance Mr Fazly’s case.  It is well-established that the weight to be given to relevant considerations is quintessentially a matter for the decision-maker.  For the same reason the fourth proposed ground, which is a generic complaint to the effect there was no “proper” or “adequate” evaluation or assessment of the matters which the IPT was required to determine, is not sustainable.

   [4]Tribunal decision, above n 1, at [65]–[80].

4. The second ground, an alleged failure to consider the children’s and family interests under the public interest limb of s 207(1) of the Act, is misconceived for the reason that limbs (a) and (b) are cumulative.  As s 207(1)(a) was not met in Mr Fazly’s case, it was therefore unnecessary for the IPT to consider the public interest limb under s 207(1)(b).

5. The third ground echoes the argument made before Palmer J that, although there is no formal burden of proof on an appellant,[5] the IPT did in fact place such a burden on Mr Fazly.  Pursuant to s 226 of the Act it is an appellant’s responsibility to “establish his or her case or claim”.  We cannot discern anything in the IPT’s decision which suggests it went beyond this requirement and imposed a formal burden of proof on Mr Fazly.

   [5]Minister of Immigration v Al-Hosan [2008] NZCA 462, [2009] NZAR 259.

6. Mr Fazly’s fifth ground places reliance on s 208 of the Act, which obliges the IPT to have regard to submissions made by a victim of an offence of which the appellant has been convicted and from which the liability for deportation arose.  The requirement in s 208 is for the IPT to have regard to the submissions of the victim, but not necessarily reach a decision that accords with those views.  It is apparent from its decision that the IPT gave consideration to the views of Mrs Fazly,[6] and, in doing so, it discharged the s 208 obligation.

   [6]Tribunal decision, above n 1, at [41]–[47].

7. Sixthly, Mr Fazly contends the IPT erred in law in not having proper regard to his health condition or his support in Fiji.  However the IPT considered Mr Fazly’s health specifically at [40] and [66], noting that his medical condition appeared to be under control and that there was no evidence that the medications he took for his health condition were not available in Fiji or that the level of health care there would not meet his needs.  There was no error of law in the IPT’s consideration of Mr Fazly’s health.  Similarly there was no error of law in the IPT’s consideration of the evidence of the Chairman of the Islamic Institute in Auckland concerning Mr Fazly’s reformed personality.

8. Finally, while Mr Fazly submits no serious regard was had for the evidence of Ms Farrell, a clinical psychologist, it is apparent from [50]–[55] and [74] of the IPT’s decision that it did have regard to her evidence.  This alleged failure does not obtain any traction from the fact that the argument is framed as one of a failure to have “serious” regard to the evidence. 

9. Like Palmer J, we do not consider that any of Mr Khan’s submissions on behalf of Mr Fazly identify a question of law, let alone one which by reason of its general or public importance or exceptional circumstances involving individual injustice justify granting leave to appeal.

Result

1. The application for leave to appeal is declined.

2. The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

Solicitors:
Singhs Solicitors, Auckland for Applicant
Crown Law Office, Wellington for Respondent