The recent decision of Minister of Immigration v Jooste [2013] NZHC 2671 (14 October 2013) is interesting for a number of reasons.First of all, it appears to be the first time that Immigration (through the Minister) has appealed against an Immigration and Protection Tribunal decision to allow someone facing deportation to retain their Residence owing to their exceptional circumstances.  In fact it may be the first time that the Government has appealed under s 245 Immigration Act 2009 at all, but don’t quote me on that.  Secondly, the Minister was trounced on all counts.  Mr Jooste was unrepresented but Justice Mallon went in to bat for him – as it were – on the several challenges mounted against the IPT decision.

Mr Jooste and his family obtained Residence in 2007.  In 2010 he was convicted of defrauding the Auckland City Council of nearly $350,000 and sentenced to 3 years’ gaol.  As a result he became liable for deportation and appealed.  The IPT upheld his appeal so that he kept his Residence.

Another item of interest out of the decision is that the Court cited without disapproval the Tribunal’s approach that the mere fact of having Residence could contribute to whether the appellant had exceptional circumstances.  The IPT cited figures that out of several thousand deportation or removal appeals since 2006, only a few hundred involved Residents.  That is, Residents make up a small minority of deportees and represent an exception to the rule.  Because of the fact that all potential deportees must cross the threshold of showing “exceptional humanitarian circumstances”, Residents are entitled to be considered as part of that pool of people rather than as a class on their own.  Or, as the Judge put it:

There is no logical reason why being a resident should limit the pool of persons against whom exceptionality is measured to just those who are also residents . . . [E]xceptionality is logically to be measured against the greater pool of all deportation cases, not against a subset of it.

The IPT was at pains to point out that merely being a Resident doesn’t on its own equate to exceptional humanitarian circumstances.  However, the upshot is that Residents have a head-start on others facing deportation (such as overstayers).  Maybe the Government didn’t intend that particular outcome, but it is stuck with the law which it made.

This argument works in tandem with an opinion expressed some time ago by Doug Tennent in Immigration and Refugee Law (2010), 392 – 395.  Although the exceptional circumstances test now applies across the board both to people who used to be “removed” and those who are to be “deported”, it is likely that Residents, who have usually established themselves more fully into life in New Zealand than temporary visa holders or overstayers, can more easily show that their situation will pass the test.

It’s nice to see that sometimes law and common sense can work together.