IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2019-404-2240
[2020] NZHC 1510	

BETWEEN	VINCENT SMITH
Applicant	
AND	MINISTER OF IMMIGRATION
Respondent	

	CIV-2019-404-2246	

BETWEEN	
VINCENT SMITH
Applicant	
AND	MINISTER OF IMMIGRATION
First Respondent	
AND	THE IMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent	

Hearing:	4 June 2020	
Appearances:	R Chaudhry for the Applicant Ms S Earl for the Respondent	
Judgment:	1 July 2020	

JUDGMENT OF HINTON J

This judgment was delivered by me on 1 July 2020 at 10:00 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Meredith Connell, Auckland Chaudhry Legal, Manukau

SMITH v MINISTER OF IMMIGRATION [2020] NZHC 1510 [1 July 2020]

Introduction

[1]	Mr Smith applies for leave to appeal against and bring judicial review proceedings in respect of a 23 September 2019 decision of the Immigration and Protection Tribunal.1

[2]	In that decision, the Tribunal rejected Mr Smith’s claim that there are exceptional circumstances of a humanitarian nature present in his case, such that it would be unduly harsh or unjust for him to be deported from New Zealand.

[3]	Mr Smith says the Tribunal erred in its evaluation of the circumstances of his case in reaching that conclusion.

[4]	The Minister of Immigration opposes both applications for leave saying none of the proposed grounds of appeal are arguable, and that none engage matters of general or public importance or otherwise disclose any reason to justify the grant of leave.

[5]	The Tribunal abides the decision of the Court.

Background

[6]	Mr Smith, who is 31 years old, is a Fijian citizen. He obtained New Zealand residency on 22 April 2015, on the basis of having lived in Australia since 2013 and having become a resident of Australia that same month. He travelled between Australia and New Zealand a few times, remaining in New Zealand from 23 February 2016.

[7]	Between June 2016 and May 2017, Mr Smith told a number of other recent migrants, members of the Fijian community in New Zealand it appears, that he was an immigration officer or advisor who could help them resolve immigration-related difficulties. Under these false pretences, he obtained cash payments of over $290,000. Mr Smith was convicted and sentenced in February 2018 and again in June 2018, receiving an effective end sentence of two years’ eight months’ two weeks’

1	Re Smith [2019] NZIPT 600543.

imprisonment in respect of a number of charges of impersonating an immigration officer and obtaining by deception.

[8]	Before the Tribunal, Mr Smith acknowledged there is “no real excuse” for his offending. He explained it as having been caused by his gambling addiction, saying he had been addicted to such a level he could not discern right from wrong.

[9]	Because of these convictions, Mr Smith became liable for deportation pursuant to s 161(1)(b) of the Immigration Act 2009 (the Act). He appealed to the Tribunal against his liability for deportation on humanitarian grounds, pursuant to s 161(2) of the Act. That appeal was heard on 11 September 2019, and the decision under appeal was given on 23 September 2019.

The Tribunal’s Decision

Witness evidence

[10]	The Tribunal began by recording the effect of Mr Smith’s evidence, the summary of which is not contested on appeal. This was that Mr Smith struggled to remain in Fiji because he is gay, and to be homosexual in Fiji is difficult. These difficulties are compounded if one is raised in the Muslim faith, as was Mr Smith. Of his family, only Mr Smith’s mother accepted him, with his siblings rejecting him, and his father neglecting him. His mother, Mr Smith says, is the one person in his life who has never failed him. She lives in New Zealand, having come here after he did. She is now over 60 years old, and her health is failing. He strongly desires to remain here so as to provide her with material support and care and to receive her emotional support.

[11]	Ms Nisha, Mr Smith’s mother, is recorded as having given evidence corroborating Mr Smith’s version of events. She says it is her “dearest hope” to remain together with her son, Mr Smith being the only one of her children that she is close to and that cares for her. She confirms she is too frail to travel.

[12]	As to his prospects if returned to Fiji, Mr Smith’s evidence was that he has no chance of finding employment in Fiji. While gay people are nominally legally

protected, he says there is a culture of discrimination that will make it hard for him to find work. He said that he is at risk of death or serious harm at the hands of the families of those he harmed and that the Police will turn a blind eye.

[13]	Additionally, Mr Smith says he has health problems that would be more difficult to treat in Fiji than New Zealand. These are pancreatic issues, colitis pericarditis, suspected colon cancer, and depression. Because of the lack of family support available in Fiji, he is concerned he will not receive adequate support.

[14]	Ms McFadden, a clinical psychologist who interviewed the appellant and his mother, also gave evidence. The effect of her evidence was recorded by the Tribunal as follows. Again, this summary is not challenged on appeal.

[15]	Ms McFadden assessed Ms Nisha as a frail and vulnerable elderly woman with complex health needs who is “poorly prepared for a negative outcome” in respect of the present appeal process. She considered Mr Smith’s concern for his mother as genuine, but also expressed concerns that Ms Nisha views Mr Smith as responsible for meeting her needs. She was therefore of the view, I infer, that Ms Nisha’s presence in Mr Smith’s life may increase his risk of reoffending, particularly as Mr Smith continued “to present with features of minimisation and denial”, as well as indications of a history of poor problem-solving and difficulties managing stress.

[16]	The position in respect of Mr Smith’s own health status was, in Ms McFadden’s view, even less clear. Her assessment, consistent with concerns held by other health professionals, was that Mr Smith has exaggerated his health issues and engaged in deliberate behaviours to distort medical tests or worsen symptoms. She notes that on his medical records Mr Smith has not undertaken the tests required to confidently confirm or exclude the possibility of his having cancer or other major health issues. Similarly, Mr Smith’s self-reported history of mood disturbance was, she said, difficult to assess because of the inconsistent nature of his reporting. She was consequently unable to confidently assess the likely impact of deportation on Mr Smith.

Other materials noted

[17]	As well as the above evidence and supporting written statements, the Tribunal’s decision records it having referred to a number of other documents. These include, most pertinently for present purposes, news articles and other materials regarding the attitude towards gay men in Fiji and a reference in support from Amnesty International. As to Ms Nisha’s health, her medical history was in evidence. More generally, the Tribunal also referred to a 15 August 2019 decision of the Parole Board declining parole on the basis Mr Smith’s “risk [of reoffending] remains undue”, documents from Northern Problem Gambling Services and the Salvation Army indicating Mr Smith has sought help for his gambling problem, details regarding an assault on Mr Smith in prison on 25 June 2019, the summary of facts and sentencing notes relating to Mr Smith’s conviction on 14 June 2018, and submissions.2

Identification of the relevant principles

[18]	The Tribunal identified the relevant test on the appeal as that provided for by s 207(1) of the Act, which provides the Tribunal must allow an appeal against deportation on humanitarian grounds only if 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.

[19]	The Tribunal referred to the majority decision of the Supreme Court in Ye v Minister of Immigration,3 interpreting this as requiring there to be exceptional circumstances of a humanitarian nature, that is, circumstances “well outside the normal run” that, while not unique or rare, are “truly an exception rather than the rule”4 that would make it unjust or unduly harsh for the person to be removed from New

2	At [40] and [45].
3	Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
4	At [34], referring to Ye at [34].

Zealand.5 This latter step requires a balancing of the reasons why the appellant is liable for deportation against the consequences for the appellant of deportation.6

[20]	Additionally, because “there are family interests at issue”, the Tribunal identified the need to have regard to the entitlement of the family, as the fundamental group unit of society, to protection from arbitrary or unlawful interference;7 which will arise where interference with that unit is disproportionate or unnecessary.

Evaluation of the existence of exceptional humanitarian circumstances

[21]	The Tribunal was not satisfied that there were exceptional circumstances of a humanitarian nature in the appellant’s case. In arriving at this conclusion, the Tribunal appeared to prefer Ms McFadden’s evidence regarding Mr Smith’s tendency towards creating an exaggeratedly negative impression of his well-being for gain, and the absence of clear medical evidence supporting his claims of poor health.8

[22]	In terms of Mr Smith’s homosexuality and fear of returning to Fiji, the Tribunal noted that art 26(3) of the Fijian Constitution, and provisions of Fijian employment law, provide protection against discrimination on the grounds of sexual orientation. On the other hand, the Tribunal accepted that there is evidence that homosexual people continue to face instances of intolerance, discrimination, and abuse, citing reports describing a low risk of discrimination by officials and a moderate risk of discrimination in society at large.9 Ultimately however, the Tribunal placed greatest weight on United Nations information that the prevalence and severity of discrimination is reducing and tolerance increasing in  Fiji, and  also on the fact     Mr Smith has lived in Fiji before without apparent danger to his life. While accepting he may well experience intolerance, hostility, and ostracism, the Tribunal did not consider this “well beyond the norm” and said furthermore, there is no evidence of particular threat of harm at the hands of victims’ relatives.10

5	At [47].
6	At [62], referring to Ye at [9].
7	At [48], referring to the International Covenant on Civil and Political Rights GA Res 2200A (1966), arts 17 and 23(1).
8	At [51]-[53].
9	At [55].
10	At [57].

[23]	As to Mr Smith’s relationship with his mother, and the concerns for her health, the Tribunal noted they  had  already  been  separated  for  two  years  because  of  Mr Smith’s imprisonment, and they had maintained contact and emotional support during that period.11 The Tribunal noted that the available evidence is that Ms Nisha’s condition is at present stable.

Injustice and/or undue hardship

[24]	The Tribunal continued, in the interests of completeness, to consider whether deportation would be unjust or unduly harsh.12

[25]	The Tribunal acknowledged Mr Smith’s remorse for his offending and his commitment to making recompense to his victims. However, the Tribunal placed weight on the sentencing judge’s assessment that Mr Smith was not in fact genuinely remorseful, and that there is no realistic prospect of “meaningful reparation” being achieved. The Tribunal further endorsed the Judge’s assessment that the victims were highly vulnerable people whose victim impact statements were “sad and chilling documents” and that the offending was further aggravated by Mr Smith’s impersonation of a public official.13 These factors weighed strongly in favour of deportation being an appropriate outcome.

[26]	Balancing these factors against  the  potential  impacts  of  deportation  on  Mr Smith, the Tribunal was not satisfied that it would be unjust or unduly harsh for Mr Smith to be deported, especially given the “mitigating factors” of these potential hardships.14 By this remark, I understand the Tribunal to have viewed these risks as not being particularly severe in this particular case.

[27]	Accordingly, the Tribunal dismissed the appeal. Nonetheless, the Tribunal ordered that Mr Smith would not be subject to the period of prohibition on entry to New Zealand that would ordinarily apply following his deportation, to allow Mr Smith to apply to re-enter New Zealand to visit his mother.15

11	At [59].
12	At [61].
13	At [64].
14	At [65]-[66].
15	At [69]-[70]. See the Immigration Act 2009, ss 180(1) and 215(1)-215(2).

Proposed Grounds of Appeal and Judicial Review

[28]	Mr Smith now applies to this Court for leave to appeal against the Tribunal’s decision; and also for leave to bring proceedings for an order of certiorari in respect of the decision, which is to be treated as an application for leave to bring judicial review proceedings.16

[29]	The proposed ground of appeal is that the Tribunal erred in law when it failed to apply and/or misapplied the correct test of exceptional circumstances under s 207(1) of the Act as it applies to Mr Smith. In particular, Mr Smith wishes to argue that the Tribunal erred in law in saying his circumstances “were not significant factors”, or, alternatively, by unduly limiting “what could be considered as exceptional circumstances of a humanitarian nature”.

[30]	The two proposed grounds of judicial review pursued address essentially this same point. There, Mr Smith proposes to say that the Tribunal failed to, or did not properly consider, all the circumstances of his case before arriving at its decision. Counsel for Mr Smith, Mr Chaudhry, casts these grounds in terms of a failure to consider mandatory considerations, consideration of irrelevant considerations, and a failure to discharge statutory duties insofar as, he asserts, the Tribunal was required to assess all available evidence relevant to Mr Smith’s case before determining the appeal using the s 207(1) test. As I return to below, I do not consider this couching of Mr Smith’s grounds as apposite.

Requirement for Leave

[31]	Pursuant to s 245 of the Act a party to an appeal before the Tribunal dissatisfied with a determination of the Tribunal in the proceedings may appeal to this Court. However, such an appeal may only be brought on a question of law, and leave must first be obtained.17 In determining whether to grant leave to appeal, this Court must:18
have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.

16	Judicial Review Procedure Act 2011, s 11.
17	Section 245(1).
18	Section 245(3). The decision of the High Court as to the grant of leave is final: s 245(1A).

[32]	Similarly, s 249(3) provides that judicial review of proceedings may only be brought in respect of a final determination of the Tribunal if the High Court grants leave to bring the judicial review proceedings. In determining whether to grant leave, this Court must assess:19
(a)	whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and

(b)	if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

[33]	Where a person intends to both appeal against a determination of the Tribunal and bring review proceedings in respect of the same decision, they must, as Mr Smith has done, lodge the application for leave to appeal and the application for leave to bring review proceedings together.20 The Court must also, as I now proceed to do, endeavour to determine both applications for leave together.21

[34]	As I understand it, the parties are agreed as to the principles applicable to the grant of leave under ss 245 and 249. The starting point is that Parliament has clearly intended by enacting ss 245 and 249 to limit challenges to Tribunal determinations.22 Accordingly, leave will not readily be granted.

[35]	Similarly, Parliament has indicated that appeal, not review, is the primary mechanism by which a Tribunal decision should be challenged by providing that issues that can properly be dealt with on appeal should not be addressed on judicial review.23 In any case, because of the high degree of coincidence between the tests under ss 245 and 249, there are few instances in which a matter could be raised on review but not on appeal. It follows that leave to bring judicial review proceedings of a Tribunal decision has rarely issued.24

19	Section 249(6). The decision of the High Court as to the grant of leave is subject to an appeal to the Court of Appeal, the decision of which is final: ss 249(3) and 249(5).
20	Section 249A(2)(a).
21	Section 249A(3)(a).
22 Nabou v Minister of Immigration [2012] NZHC 2265, [2013] NZAR 155 at [6]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5]; Guo v Immigration and Protection Tribunal [2014] NZHC 802 at [52]; DO v Immigration and Protection Tribunal [2016] NZHC 3158 at [38].
23 Songmia v Minister of Immigration [2013] NZHC 3233 at [12]-[13].
24 CV v Immigration and Protection Tribunal [2015] NZHC 510 at [38]; Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [32].

[36]	I turn first to consider the application for leave to appeal, though as it happens, for the reasons given below, much the same points emerge in respect of both applications.

Application for Leave to Appeal

[37]	As noted, leave to appeal is available only in respect of errors of law. Where, as here, the alleged error of law is essentially based on a claimed grievous error in fact-finding said to rise to the level of an error of law, Kós J in Taafi noted that applicants for leave face the “triple hurdle” of persuading the Court that:25

(a)	there is a seriously arguable case that the factual findings are actually incorrect;

(b)	the factual errors are, in combination, and in the context of the whole decision, so serious as to constitute an error of law; and

(c)	the question of law is one of general or public importance, or for some other reason ought to be considered on appeal.

[38]	It has been accepted that “an ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law” 26 capable of sounding on appeal. This, however, will be the case only where the conclusion is “clearly wrong or untenable”,27 being “unsupported by evidence or one that is inconsistent or in conflict with the evidence.”28 An applicant proceeding on this basis must surmount “a high hurdle.”29

[39]	In Jooste,30 addressing specifically the test under s 249, but in comments obviously relevant to both ss 245 and 249, the Court of Appeal discussed the yardstick

25	Taafi v Minister of Immigration [2013] NZAR 1038 (HC) at [19].
26	Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].
27	Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [16], [52], [58], [80]-[81].
28	JO v Chief Executive of the Ministry of Business, Innovation, and Employment [2015] NZCA 482 at [17].
29	Chorus Ltd v Commerce Commission [2014] NZCA 440 at [110]-[111].
30	Minister of Immigration v Jooste [2014] NZCA 23.

for establishing whether an issue is one of general or public importance or ought for any other reason to be submitted to the High Court for decision on appeal. Drawing from the test governing leave for bringing of second appeals to the Court of Appeal under s 67 of the Judicature Act 1908, as was then in force, the Court noted:31
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation …

[40]	Referring to s 245 specifically, but again with obvious relevance to both ss 245 and 249, Duffy J has said in this Court that:32

… factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. … Consideration also needs to be given to whether the applicant falls into the remaining category of providing “any other reason” [for the appeal to be considered.]

[41]	As to the residual “any other reason” category referred to by Duffy J, the Court of Appeal has said that this limb is engaged, at least in the case of appeals, only by an “exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing.”33

[42]	Mr Chaudhry submits that the Tribunal erred in law in failing to take into account or not giving sufficient, or indeed any, weight to documents Mr Smith had submitted to the Tribunal concerning the treatment of homosexual men in Fiji. The effect of this material, counsel submits, is to provide “cogent evidence of the discrimination faced” by homosexual people in Fiji, supporting a finding of fact as to the risk of discrimination and prejudice a gay man would face in Fiji at odds with the Tribunal’s findings. Conversely, counsel submits, the materials referred to by the Tribunal do not support the Tribunal’s conclusion that there is increasing acceptance

31 Now see s 60 of the Senior Courts Act 2016.
32 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [2], followed Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [36] and SK, above n 22, at [7].
33 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] NZAR 662 at [8].

of diversity of sexual orientation in Fiji. Mr Chaudhry makes similar submissions in respect of the material before the Tribunal as to Mr Smith’s health status and his relationship with his mother.

[43]	Mr Chaudhry submits that the only reasonable conclusion on the facts is that, when Mr Smith’s poor health, his mother’s poor health and need for support, and Mr Smith’s homosexuality and the consequences of that in Fiji are taken together, even if not individually,34 there do exist exceptional circumstances of a humanitarian nature, such that injustice or undue hardship would arise.

[44]	For these reasons, in respect of the application for leave to appeal, Mr Chaudhry submits that the Tribunal’s findings of fact are inconsistent with or contradictory of the only reasonable conclusion of fact available on the evidence. This error in fact finding was so grievous as to amount, he says, to an error of law.

[45]	In particular, Mr Chaudhry submits that the Tribunal did not make reference to country information articles which demonstrated that homosexuals continue to face abuse in Fiji. Rather, he says, the Tribunal relied on older, outdated, country reports, leading the Tribunal into the allegedly grievous error noted above. That, counsel submits, relying in particular on Brewer J’s decision in Maddock, has been held to be a procedural error warranting appellate intervention or judicial review.35

[46]	In Maddock, as a matter of fact, Brewer J did not accept the Tribunal had relied on outdated evidence as to Mr Maddock’s psychological state and risk of offending (the relevant considerations) where eleven months had passed between the hearing and the Tribunal’s decision issuing. More generally, the Judge did not accept the proposition that any such delay in itself could automatically render evidence stale in a manner warranting judicial review or appellate correction. Any error, Brewer J considered, would have arisen if the Tribunal had refused to accept updating evidence contrary to the usual principles of relevance and freshness.36 No updating evidence had been tendered. On that basis, there was no illegality. Accordingly, I do not accept

34	Counsel referring to Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [135] and [142].
35	Maddock v Immigration and Protection Tribunal [2013] NZHC 585.
36	At [38]-[46].

Maddock as authority for the proposition that reliance on evidence of some age is, in itself, an error of law.

[47]	As it is, I agree with Ms Earl, who appears for the respondent, that Mr Smith fails at the first hurdle identified by Kós J in Taafi. Mr Smith has not demonstrated, nor has counsel appeared to seek to demonstrate, that the Tribunal’s findings are in fact incorrect. Rather, as noted above, Mr Chaudhry says merely that the Tribunal did not consider the articles referred to by him or, at the very least, materials supporting the applicant’s contention that homosexual people face challenges in Fiji other individuals do not. This again I consider to be incorrect or not sustained.

[48]	Mr Chaudhry is correct that, in its decision, the Tribunal expressly noted only two United Nations reports as the basis of its evaluation of the situation in Fiji.37 However, it is obvious that those are not the only materials the Tribunal considered. The Tribunal accepted that “despite the constitutionally guaranteed rights to equality, homosexual people in Fiji continue to face instances of intolerance, discrimination and abuse”.38 The United Nations reports to which it expressly referred made no reference to abuse. This information would appear to come from country information detailing violence against gay men in Fiji that the Tribunal notes having had reference to in arriving at its decision, these being the articles Mr Chaudhry says the Tribunal did not consider.39 Additionally, the Tribunal acknowledged, at least by inference, that Mr Smith has experienced intolerance, hostility, and ostracism by family and other members of the community in Fiji.40

[49]	It is clear that, contrary to counsel’s submission, the Tribunal did have regard to the information favourable to Mr Smith, but, rather, was not persuaded by it. As emerges from this, Mr Smith’s real proposed challenge on appeal in this regard is in fact to the Tribunal’s assessment of the evidence as to the position in Fiji as a matter of fact, and his proposed judicial review in this respect is a challenge to the substantial merits of the Tribunal’s decision.

37	Re Smith, above n 1, at [55]-[56].
38	At [55].
39	At [40(m)].
40	At [57].

[50]	As noted above, challenges to the weight which the Tribunal accords to aspects of the evidence, including where that is at the expense of other evidence, will seldom amount to an error of law.41 The Tribunal is entitled to make value judgments balancing and weighing the competing factors arising in a given case, being a matter “solely within the Tribunal’s statutory function.”42

[51]	That, as noted, is exactly what the Tribunal did in this case: having had regard to the information put to it by counsel, the Tribunal arrived at a view of the factual position that will likely result if Mr Smith is returned to Fiji that is unfavourable to Mr Smith’s argument. Were his right to an appeal not curtailed, an argument as to the correctness of that view might be available on a general appeal.43 The right of appeal is however curtailed, and the above does not, without more, disclose a question of law.

[52]	The same points arise in respect of Mr Smith’s proposed challenges to the Tribunal’s findings in respect of his own health. As noted above, the Tribunal did have regard to Mr Smith’s evidence as to his own health issues,44 his medical records,45 evidence of an assault he suffered while in prison and the injuries he sustained (from which he appears to have made a full recovery),46 and Mr Smith’s (speculative) concerns as to the level of care available in Fiji.47 It is clear the Tribunal did accept that Mr Smith has some chronic health concerns, and has some history of acute health issues.

[53]	Again however, the Tribunal also had regard to, and appeared more persuaded by, the psychologist’s evidence that available data confirms Mr Smith’s “propensity towards creating an exaggerated and negative impression in order to achieve secondary gain.”48 For this reason, it appears the Tribunal did not accept that Mr Smith

41 AH v Immigration and Protection Tribunal [2017] NZHC 1880 at [29].
42    Minister of Immigration v Zhang [2014] NZAR 88 (HC) at [34].  See also Nabou and Guo, above n 22; AB v Refugee and Protection Officer [2017] NZHC 1424 at [33]; and De Borja v Removal Review Authority [1999] NZAR 471 (HC) at 476.
43 See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
44 Re Smith, above n 1, at [26], [45], and [53].
45	At [40(e)].
46	At [40(k)-(l)].
47	At [53].
48	At [52].

had any particularly serious health issues for which treatment would not be available in Fiji, such that would be relevant to the application of the statutory criteria.

[54]	Once again, especially bearing in mind the applicant bore the onus of proof before the Tribunal,49 I am not satisfied that it is seriously arguable the Tribunal was wrong in this view, or in any way erred in law in preferring the evidence of malingering over Mr Smith’s assertions of graver health.

[55]	The same points emerge in respect of the issue of Ms Nisha’s health. The Tribunal clearly accepted the medical evidence that “the appellant’s mother has ischaemic heart disease, insomnia, asthma, hypertension, diabetes mellitus, hyperlipidaemia, and chronic obstructive pulmonary disease” and is “a frail and vulnerable woman who has high and complex health needs and few social supports” that “will feel the pain and loss of her son being deported to Fiji.”50 Equally, the Tribunal noted, Mr Smith’s mother had managed without him for over two years while he was imprisoned, had preserved their relationship, is a social welfare recipient, does have other family social and financial support, and is able to self-manage under medical supervision.51 Counsel for Mr Smith does not point to any respect in which the Tribunal’s factual findings in this regard are incorrect.

[56]	Rather, again, counsel submits the Tribunal erred in evaluating whether these facts disclosed exceptional humanitarian circumstances such that deportation would be unjust or unduly harsh. Mr Chaudhry sought to refer me to two cases in which deportation liability was cancelled based on emotional prejudice to dependent family members in support of this submission.52 However, as Ms Earl noted, these decisions related to the second limb of the test under s 207(1) of the Act, that concerned with public interest, which issue did not arise for consideration as Mr Smith failed on the first limb.

49	Immigration Act 2009, s 226(1).
50	Re Smith, above n 1, at [58]-[59]. See also [24], [29]-[30], [33], and [39].
51	At [59].
52	Re Talami [2015] NZIPT 5502208/209; and Finau [2015] NZIPT 502218.

[57]	For all of these reasons, the proposed appeal is not seriously capable of argument. Nor does it disclose any question of public importance or principled significance. The application for leave to appeal is dismissed.

Application for Leave to Commence Judicial Review

[58]	Mr Smith’s application for leave to bring judicial review proceedings, to which I now turn, is, as Brewer J said of the arguments in Maddock, “a repetition of previous arguments advanced to see whether they will fit another legal pigeonhole.”53

[59]	In saying this, I acknowledge Mr Chaudhry submits that the proposed application for judicial review engages issues as to whether the Tribunal failed to consider a relevant consideration, considered an irrelevant consideration, or failed to discharge a duty under s 207(1) of the Act to fully and properly consider the matter. By this later submission, I take Mr Chaudhry to be submitting that, before deciding whether Mr Smith’s case meets the standard prescribed by s 207(1), the Tribunal was required to inquire into the factual circumstances of Mr Smith’s case, so as to be able to make that evaluation on the facts as they stood.

[60]	Generally speaking, it has been recognised that for all decision makers “no discretion may be lawfully exercised unless essential facts are known.”54 The same is true, obviously, of a decision-maker exercising an evaluative function; such as the Tribunal under s 207(1).55 Accordingly, again speaking generally, such faults can, in an appropriate scenario, ground an application for judicial review.

[61]	That a failure to consider mandatory relevant considerations, or consideration of irrelevant considerations, will support an application for review is trite.56

[62]	Ultimately however, Mr Smith’s case does not engage any of these issues. In reality, Mr Smith seeks again to challenge the Tribunal’s evaluation of whether his case demonstrates exceptional circumstances of a humanitarian nature. That is a

53	Maddock, above n 31, at [44].
54	Minister of Conservation v Maori Land Court [2008] NZCA 564, [2009] 3 NZLR 465 at [114].
55	See Dr G v Director of Proceedings HC Auckland CIV-2009-404-951, 13 October 2009.
56	Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [50]; and Poananga v State Services Commission [1985] 2 NZLR 385 (CA) at 395.

matter of evaluation separate from, but obviously inextricably connected with, the Tribunal’s factual findings of Mr Smith’s circumstances. In either case, a challenge to such conclusions is a matter for an appeal, not judicial review. The Courts are well alive to the need to beware covert merits arguments in cases of judicial review based, as this is, on a challenge to the decision-maker’s evaluation of the evidence:57
It is not the function of [the reviewing Court] to assess the strength of the evidence and review the merits of the conclusion of the Authority. If, notwithstanding contrary evidence, there was evidence which a reasonable Authority could accept as supporting a finding … this ground of review cannot succeed. It was for the Authority to assess the evidence.

[Emphasis added.]

[63]	Such hidden legal error reviews of findings of fact will succeed only where, as noted above, the conclusion reached is entirely unsupportable on the evidence. On review, there is to be no interference with reasonably held factual views. As Cooke P once put it (in an appellate context, but with equal application to hidden legal error type reviews) “it cannot be said to be a mistake [of law] to adopt one of two differing points of view on the facts, each of which may reasonably be held.”58

[64]	Here, again, I am satisfied that the view arrived at by the Tribunal was one entirely available to it on the facts. Mr Smith’s complaint, essentially, is that the Tribunal placed greater weight on some material – that unfavourable to his case – and lesser weight on other material than he would have desired.

[65]	I accept, in a point relevant to both applications, that not all of the materials Mr Smith says he put before the Tribunal were expressly referred to in the Tribunal’s determination.

[66]	Quite simply, the Tribunal was not required to do so. The tenor of the Tribunal’s decision makes it clear that the Tribunal accepted that, consistently with the material to which Mr Smith now complains it did not pay regard, there was some risk of prejudice and discrimination against Mr Smith by reason of his sexuality if he were returned to Fiji. This makes it clear the Tribunal did in fact have regard to that

57	Riverside Casino v Moxon [2001] 2 NZLR 78 (CA) at [87].
58	New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552. See also Bryson v Three Foot Six Ltd, above n 52, at [21].

material. Furthermore, the Tribunal articulated its reasoning process in respect of the various materials provided, giving a clear statement of the reasons for its conclusions. That explanation is not required to be as exhaustive as the applicant’s submission would  require.59  The  same  applies  to  the  other  evidentiary  points  on  which   Mr Chaudhry relies.

[67]	Accordingly, the applicant’s complaint is as to the substance of the Tribunal’s decision, not the process by which it was reached. As this makes clear, the issues engaged by the applicant’s proposed grounds of judicial review are better raised on appeal. Accordingly, pursuant to s 249(6)(a) of the Act, this is not a matter in which leave to commence judicial review proceedings should issue.

[68]	For these reasons, the application for leave to bring judicial review proceedings is dismissed.

Result

[69]	The applications for leave to commence judicial review proceedings and for leave to appeal are each dismissed.

Costs

[70]	If the respondent is seeking costs, counsel is to file and serve a memorandum not exceeding five pages in length (excluding supporting materials) within two weeks of the date of this judgment. Mr Chaudhry is then to reply, subject to the same limitation as to length, within four weeks.

Hinton J

59 See Ding v Minister of Immigration (2006) 25 FRNZ 568 (HC) at [267]; Al-Hosan v Deportation Review Tribunal HC Auckland CIV-2006-404-3923, 3 May 2007 at [47]; Butler v Removal Review Authority [1998] NZAR 409 (HC) at 420-421; Wilfred v Chief Executive of the Department of Labour [2007] NZAR 237 (HC) at [108]; and Chambers v Waitangi Tribunal HC Wellington CIV- 2004-485-1170, 23 February 2005 at [24].