IMMIGRATION AND PROTECTION TRIBUNAL
NEW ZEALAND
[2015] NZIPT 600097
AT WELLINGTON
Appellant:
ABDULA, Chala-Sani
Respondent:
THE MINISTER OF IMMIGRATION
Before:
A M Clayton (Chair)
A N Molloy (Member)
Counsel for the Appellant:
R Woods
Counsel for the Respondent:
G La Hood & A Graham
Dates of Hearing:
2 & 3 December 2013
Date of Decision:
20 February 2015
___________________________________________________________________
DECISION
___________________________________________________________________
INTRODUCTION
[1]
The appellant is a 33-year-old citizen of Ethiopia. He appeals against
liability for deportation that arises under section 161(1)(b) of the Immigration Act
2009 (“the Act”) because he has been convicted of rape. He appeals on
humanitarian grounds, under section 206(1)(c) of the Act.
[2]
The primary issues in the appeal are whether the appellant is at risk of
serious harm in Ethiopia such as to give rise to exceptional circumstances of a
humanitarian nature, and, if so, whether it would be unjust or unduly harsh to
deport him from New Zealand when the gravity of his offending is weighed against
that risk.
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The Interpreter
[3]
During the course of the hearing counsel for the appellant expressed some
concern about the performance of the interpreter. The Tribunal is satisfied,
however, that overall the interpreter properly performed his function to an
appropriate standard. Concerns about particular aspects of the evidence were
dealt with and clarified with the assistance of counsel as the hearing proceeded.
Mr Woods’ concern is understandable but, when invited to provide specific
examples of evidence that may not have been properly interpreted, he was unable
to do so. The appellant is familiar with issues of interpretation (see Abdula v R
[2011] NZSC 130) and the Tribunal is satisfied that, had there been anything of
significance, counsel would have been able to point to it.
THE APPELLANT’S CASE
[4]
The Tribunal heard evidence from the appellant, from a member of the
Ethiopian community in Wellington, Demissie Diressie, and from the appellant’s
employer, Ari Chait. Their accounts are summarised below.
Evidence of the Appellant
[5]
The appellant is a national of Ethiopia, of Oromo ethnicity. He was born
during the early 1980s in Chulul, in the Garawa District, some distance to the east
of Addis Ababa. His father had four wives, including the appellant’s mother, who
also gave birth to the appellant’s three older sisters, Sada, Kimiya and Bidatu. His
father also had 11 children to the other three wives. The appellant had no contact
with his step-siblings for many years prior to his departure from Ethiopia.
[6]
While Oromo make up a significant part of the Ethiopian population, they
have long been the subject of discrimination. The appellant’s father was a wellknown supporter of, and fundraiser for, the Oromo Liberation Front (“the OLF”), an
organisation formed to advocate for the rights of people of Oromo ethnicity. It has
been banned for many years. The father had the letters “OLF” tattooed onto the
appellant’s arm when he was a young child.
[7]
The father died during the early-mid 1990s, when the appellant was still
young. The appellant does not know the precise circumstances of his father’s
death, but knows that he died at the hands of government soldiers, as did many
3
people in the region at that time. This left the appellant, his mother and his three
sisters to fend for themselves.
[8]
The father’s profile has created ongoing difficulties for the appellant and his
family. Some years after his father’s death, the appellant’s oldest sister, Sada,
was accused of being a member of the OLF. She was raped and then shot,
fatally, in front of her children. After Sada’s death, her five children joined the
appellant’s household. Her husband has not been heard from since and the
appellant believes that he left Ethiopia. The appellant’s sister Kimiya, who is
approximately 10 years older than him, left Ethiopia in 1998 to follow her husband
to New Zealand. He had fled from Ethiopia because of his own political problems.
Kimiya arrived in New Zealand later that year as a refugee under the Refugee
Quota programme.
[9]
After their departure, the appellant and his remaining family members no
longer had the regular financial assistance that Kimiya’s husband had previously
provided. They moved around to try to avoid contact with government forces, with
limited success. He recalled that on one occasion, when he was young, villagers
were corralled together by soldiers, who shot several of them as a warning to the
rest. A soldier beat the appellant’s mother when she placed a hand over the
appellant’s face to prevent him from seeing what was happening.
[10] In time, the appellant began to undertake simple errands for the OLF. He
delivered items from one group to another, and provided information about the
location of soldiers. He had several encounters with the authorities during these
years, and was detained and mistreated at various times. On one occasion he
was shot in the hand. On another, his head was cut with a bayonet while he was
held in an overcrowded cell beneath the ground. Later, his arms were burnt with a
cigarette while his hands were tied and the tattoo on his arm was partially and
crudely removed by soldiers using a knife. On another occasion, his head was
placed in a sack through which water was poured until he choked.
[11] On another occasion, the appellant was apprehended by government forces
and detained in Laijeyasu prison. He was given no food for the first two days.
After four days he was transferred to another prison where he was subjected to
electric shocks and interrogated. The soldiers were trying to unearth a book
supposedly kept by the appellant’s father with details of the OLF movement, and
were seeking information about OLF members and supporters in his area. He was
eventually released and left by the roadside. Some local people took him in and
cared for him until he was strong enough to return to his family. The appellant was
4
imprisoned again in 2003, not long before he came to New Zealand. Before he
was released, he was beaten on the soles of his feet.
[12] After Kimiya came to New Zealand in 1998, she sponsored her mother’s
application to bring the appellant and his sisters to New Zealand under the (thenexisting) Humanitarian category of immigration policy. Immigration New Zealand
initially declined the application on the basis of DNA tests that indicated that the
mother was not biologically related to her children.
[13] The appellant’s mother appealed against that decision to the Residence
Appeal Authority, which issued a detailed decision in mid-2003; Residence Appeal
No AAS13555 (16 July 2003) (“the RAA decision”). The Authority identified flaws
in the process adopted by the New Zealand Immigration Service in declining the
application, and referred the matter back to the Chief Executive of the Department
of Labour, to be re-assessed. Subsequently, an immigration officer interviewed
the appellant in December 2003. He, his mother and his remaining sibling were
issued with residence visas in September 2004. The appellant left Ethiopia and
travelled to New Zealand by air, arriving in late October 2004. He was granted a
residence permit upon arrival.
[14] The appellant obtained work with a boutique bakery in Wellington shortly
after he arrived. He displayed an aptitude for the work and was well thought of by
his employer, Mr Chait, who stood by him until he was convicted and imprisoned in
2009. Mr Chait employed him again following his release from prison in 2012.
The appellant’s offending
[15] The appellant committed the offence for which he was imprisoned in late
April 2007. The victim was an intoxicated young woman who approached the
appellant’s workplace late one evening in order to use the toilet. One of the
appellant’s colleagues led her inside and sexually assaulted her. Police originally
interviewed the appellant as a witness to the incident but he was eventually
charged with rape when DNA testing identified his semen in her cervix. He
pleaded not guilty, claiming that the victim had consented to the sexual contact.
[16] The appellant was tried before a jury, and was found guilty.
On
27 March 2009, Judge M J Behrens QC sentenced him to a term of seven years’
imprisonment. The appellant’s colleague was found guilty of being a party to rape
and to sexual violation.
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[17] The appellant appealed against conviction and sentence. His appeal was
finally disposed of when both sentence and conviction were upheld by the
Supreme Court in November 2011. Throughout, he continued to deny the
offending, claiming that the sexual contact was consensual. He has subsequently
conceded to the Tribunal, however, that he acted inappropriately and claims that
cultural differences led him to misinterpret her actions.
[18] The appellant was released on parole in June 2012, under strict conditions
as to his residential accommodation, workplace and associates. His parole has
been monitored at regular intervals. He has complied with the conditions of his
release and he has not offended again.
[19] Mr Chait has employed the appellant again since his release from prison.
He is one of approximately 40 employees at the bakery, and at the time of the
appeal hearing was in charge of a team of approximately 10 on two of his five
weekly shifts. He had commenced an apprenticeship, the cost of which was being
met by Mr Chait.
Relationship in New Zealand
[20] The appellant has in the past had a relationship with a New Zealand citizen,
“AA”, who also worked at the bakery. She visited him frequently while he was in
prison. They continued to see each other almost daily until shortly before the
appeal hearing, when she took up a position with a different employer. Their
relationship has now ended, but he states that they are still friends. AA did not
give evidence before the Tribunal.
Family
[21] The appellant’s mother and sisters have all left New Zealand. Kimiya
moved to Australia in December 2007. The appellant is in contact with her by
Skype. His mother moved to Australia in August 2008 and his sister Bidatu
followed in March 2009. The appellant frequently spends time with three nephews
and three nieces who still live in Wellington. Some of them have children of their
own. He has had no contact with any step or half-siblings in Ethiopia for many
years, dating back to a time well before he came to New Zealand.
6
Concerns about return
[22] The appellant says that if he were to return to Ethiopia he would be
identified as an OLF supporter and as the son of his father. That would place him
at risk of being subjected to the same type of mistreatment that he experienced in
the past. The appellant does not know where he would live if he had to return to
Ethiopia, nor what he might do to earn a living.
Evidence of Dr Demissie Diressie
[23] Dr Diressie is also an Ethiopian citizen of Oromo ethnicity. He arrived in
New Zealand in 2010 and has held resident status in New Zealand since mid2012.
He holds a medical qualification from an Ethiopian university, a
postgraduate diploma from a university in the United Kingdom and a master’s
degree in public health from a European university.
Prior to coming to
New Zealand, Dr Diressie spent six years as a general practitioner in two regional
hospitals in Ethiopia. He later spent two years in a senior management role within
a regional health bureau in Ethiopia and then seven years working with
international aid organisations in Ethiopia, Zambia, Liberia and Sudan. He spent
more than two years as a regional deputy minister of health. At the time of the
appeal hearing he was working for refugee health services and for Red Cross,
which had recently blended their respective services.
[24] Dr Diressie is married to the appellant’s niece (the daughter of his deceased
sister, Sada). He first met his wife in Ethiopia in 1999, then again in about 2007.
They became engaged in 2009. Dr Diressie never met his wife’s mother and has
never pressed his wife about the circumstances of her death. As far as he is
aware, his wife’s father disappeared after the mother’s death.
[25] Dr Diressie explained that the Oromo people have been oppressed and
discriminated against for more than a century. Prior to the overthrow of the regime
in 1991, Oromo were not permitted to speak their language or manifest their
culture and were not able to participate in politics. That changed to some extent
after 1991, when the creation of various federal states meant that the Oromo
people could finally use their language in the Oromia region.
[26] Dr Diressie said that his experience in Ethiopia had been fundamentally
different to that of the appellant. He and his two siblings lived without interference
from the government. He had no political involvement and he had occupied
comparatively privileged roles, including a government appointment.
He
7
distinguished his situation from that of the appellant, whose father was known for
his passionate celebration of the Oromo culture. This manifested in various ways
including his choice of names that the appellant and his sisters bear, which he said
would be instantly identifiable to other Ethiopians as Oromo.
[27] Dr Diressie met the appellant twice in Ethiopia, before either of them came
to New Zealand. The meetings were brief and coincidental. He was polite to the
appellant on both occasions, but was reluctant to be openly associated with him
because he was aware of the identity of the appellant’s father and did not wish to
compromise his position through any perceived association with the OLF.
[28] According to Dr Diressie, the environment for people trying to stand up for
Oromo rights is still fraught. There is no freedom of speech or association for such
people, despite the guarantees contained in the constitution. The OLF is one of
four organisations that were specifically banned in 2009 and Dr Diressie believes
that anyone associated with it would risk being put in prison, tortured or killed. In
his capacity as a medical practitioner in Ethiopia, he treated several Oromo who
manifested signs of mistreatment and torture. Some had bullet wounds and some
head injuries. Some had gangrene as the result of having their hands tied behind
their backs for sustained periods of time.
[29] In Dr Diressie’s view, if the appellant were to return to Ethiopia he would still
be at risk of harm because of his father’s profile, and he would have political and
social problems without family to support him.
[30] While the appellant was serving his sentence, Dr Diressie visited him every
second or third week. They have socialised frequently since his release. He said
that the appellant is close to his family in New Zealand and spends a lot of time
with them.
Evidence of Mr Ari Chait
[31] Mr Chait is the owner of a bakery in Wellington. He employed the appellant
from 2004 until his conviction and imprisonment in 2009, and then employed him
again upon his release in 2012. He holds the appellant in high regard and
described him as an industrious and polite man with an impeccable work ethic.
[32] Mr Chait is aware of the appellant’s conviction. The rape occurred at
Mr Chait’s work premises. For this reason Mr Chait informed the appellant, after
he had been charged, that he was going to have to make him redundant. The
8
appellant approached him approximately three months later, in need of work.
Mr Chait was concerned about the possible impact upon his female employees
and asked them for their reaction to such a proposal. They were not concerned,
so the appellant was rehired. He remained in Mr Chait’s employment until his
conviction and imprisonment.
[33] Mr Chait thought very carefully before agreeing to re-employ the appellant
in 2012. He decided that he knew the appellant well enough to offer him work
again. Mr Chait did not have a specific vacancy at the time, but said that the
appellant possesses skills such that he made a place for him. He is a competent,
honest, respectful and reliable employee.
Documents and Submissions
[34] The Tribunal was provided with a copy of the file prepared for the Minister
of Immigration (“the Minister”). A significant amount of other information has also
been made available for the purposes of the appeal hearing. This is set out below.
[35] Mr Woods provided opening submissions for the appellant under cover of
an email dated 25 November 2013, together with the following documents:
(a)
email message dated 25 May 2012 from psychologist, Nev Trainor to
counsel;
(b)
Department
of
23 March 2012;
(c)
psychological assessment report of Nev Trainor dated 1 June 2012;
(d)
Parole Board decision dated 13 December 2011;
(e)
Parole Board decision dated 6 June 2012; and
(f)
Parole Board decision dated 9 October 2012.
[36] Counsel
for
26 November 2013.
the
Corrections
Minister
lodged
psychological
opening
report
submissions
dated
on
[37] On the first day of the hearing the Tribunal provided both parties with a copy
of a transcript of an interview with the appellant conducted by Immigration New
Zealand, London branch, on 23 December 2003.
9
[38] Various additional documents were made available to the Tribunal
immediately prior to or during the hearing:
(a)
Department of Corrections report dated 21 December 2012;
(b)
Parole Board decision dated 24 January 2013;
(c)
Department of Corrections report dated 15 March 2013;
(d)
Human Rights Watch World Report: Ethiopia (2012);
(e)
Department of Corrections psychologist’s report of Natalie Hogg
dated 30 March 2011;
(f)
Residence Appeal No 13555 (16 July 2003);
(g)
a letter dated 13 November 2003, signed by the Chief Prosecutor of
the Garawa District, Eastern Harerge Administrative Zone, together
with English translation; and
(h)
copies of extracts from the appellant’s Ethiopian passport.
[39] Under cover of a letter dated 13 December 2013, the Tribunal provided both
parties with copies of the following items of country information:
(a)
Human Rights Watch Suppressing Dissent: Human Rights Abuses
and Political Repression in Ethiopia’s Oromia Region (10 May 2005)
(“the 2005 HRW Report”);
(b)
Country of Origin Research and Information Research Analysis
Ethiopia: Treatment of members of the Oromo Liberation Front
(OLF), including members of their family (6 July 2009);
(c)
International Crisis Group Ethiopia: Ethnic Federalism and its
Discontents (4 September 2009) (“the 2009 ICG Report”);
(d)
International Crisis Group Ethiopia After Meles (22 August 2012);
and
(e)
Human Rights Watch “They Want a Confession”: Torture and IllTreatment in Ethiopia’s Maekelawi Police Station (17 October 2013)
(“the 2013 HRW Report”).
10
[40] Counsel for the appellant provided copies of the following documents under
cover of a letter dated 24 December 2013:
(a)
interim medical report dated 18 December 2013 prepared by
Dr Edwin Whiteside;
(b)
psychological report dated 18 December 2013 prepared by
Jennifer Jones, registered clinical psychologist; and
(c)
psychological report dated 1 June 2012 prepared by Nev Trainor.
[41] Closing submissions were lodged on behalf of the Minister on
17 January 2014, and on behalf of the appellant under cover of a letter dated
31 January 2014.
[42] Under cover of a letter dated 10 November 2014, the Tribunal provided both
parties with copies of the following items of country information, and invited further
submissions or material:
(a)
Amnesty International ‘Because I am Oromo’: Sweeping repression
in the Oromia region of Ethiopia (October 2014) (the 2014 AI Report);
and
(b)
Case studies to accompany Amnesty International report ‘Because I
am Oromo’: Sweeping repression in the Oromia region of Ethiopia
(October 2014).
[43] Submissions in response were lodged on behalf of the Minister on
8 December 2014 and on behalf of the appellant on 15 December 2014.
STATUTORY GROUND OF APPEAL
[44] 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.”
11
[45] We turn first to consider the first limb of the statutory test. 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 [2010] 1 NZLR 104, that three ingredients
had to be established in the first limb:
[46]
(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.
The Supreme Court noted, in Ye v Minister of Immigration, at [34] that for
circumstances to be exceptional they “must be well outside the normal run of
circumstances”. While they do not need to be unique or rare, they do have to be
“truly an exception rather than the rule”.
ASSESSMENT
Whether there are Exceptional Circumstances of a Humanitarian Nature
[47] With respect to the appellant’s personal circumstances we note that, prior to
his conviction and imprisonment, he was in a relationship, but that has come to an
end and he is presently single. He has no family to whom he can return in
Ethiopia but nor is his immediate family in New Zealand. His mother and two
surviving sisters moved to Australia several years ago. He has nieces and
nephews in Wellington and regularly socialises with them. If he were to be
deported from New Zealand he would miss them and their company and they
would no doubt miss him. However, they are independent of him and he of them
and they have chosen to live separately from their own parents (the appellant’s
siblings).
[48] The appellant is well-settled in New Zealand, having lived here for over a
decade, albeit that three-and-a-half years of that time was spent in prison. He has
established himself as a valued employee, in whom his employer has invested a
high degree of trust and faith. The employer has also invested financially in the
appellant’s training and in enabling him to undertake an apprenticeship. If he
remains in New Zealand he would be able to maintain his current position and will
have augmented his practical experience with a qualification. These are also
12
qualities that he could presumably put to use in the local employment market
(about which there is little evidence) if he were to return to Ethiopia.
[49] The appellant is an independent adult. At the time of the appeal hearing he
was living in his own accommodation, according to the dictates of the Probation
Service. If he were to return to Ethiopia he will need to find accommodation but,
putting to one side the aspects of his individual risk profile, which we address
below, there is no general reason why an adult male could not find
accommodation within the Oromia region, in the capital, Addis Ababa or in some
other large urban centre in Ethiopia. Dr Diressie confirmed that there is
accommodation available to those who can afford it in Addis Ababa and other
cities.
[50] In reality, the appellant’s appeal turns upon his claim to be at risk of serious
harm in Ethiopia. He claims that Oromo have long been discriminated against,
despite being the largest ethnic group within Ethiopia. He also claims, however,
that his predicament cannot be understood merely in terms of discrimination. He
claims that he has been physically mistreated on a number of occasions in the
past because of the profile of his father, a political figure who lost his life at the
hands of the Ethiopian military. He claims that he is at risk of being seriously
harmed again in the future if he has to return to Ethiopia.
[51] If the appellant’s account is credible then the harm he faces could give rise
to exceptional humanitarian circumstances for the purposes of the statutory test.
The credibility of his account is therefore clearly relevant to the Tribunal’s
assessment of his appeal.
Counsel’s submissions as to credibility
[52] Counsel for the Minister submits that the appellant is not a credible witness.
He draws attention to a number of unsatisfactory aspects of the evidence provided
by and on behalf of the appellant.
[53] For example, counsel refers to concerns over the biological relationship
between the appellant, his sisters and his mother, and effectively invites the
Tribunal to draw an adverse inference from the failure of the appellant’s mother
and his two surviving sisters to give evidence on his behalf.
[54] With respect to the appellant’s claim to have been injured and mistreated in
the past, counsel submits that the appellant was unable to confirm the dates of his
13
detentions and could not recall the detail of some detentions. Further, while giving
evidence, the appellant referred to significant events that were not included in his
written statement. For example, he spoke about having been shot in the hand by
government forces, and he stated that his sister Sada was raped before being
killed by the military. Neither detail was disclosed in his statement. Nor did his
statement record that he had been electrocuted when he was 12, as he claimed
during the hearing.
[55] In addition, Counsel submits that the appellant gave inconsistent evidence
as to whether he had been injured in the groin, the testicle, or both. His claim that
the military had removed one of his testicles is contradicted by the evidence of
Dr Whiteside, whose report confirms that both testes were intact when he
examined the appellant in 2013.
[56] The result of these various deficiencies is, counsel for the Minister submits,
that the appellant has not established that he was subjected to maltreatment in the
past or, therefore, that he is at risk of being subjected to maltreatment in the
future.
Discussion of the Appellant’s Credibility
[57] Immigration New Zealand long held concerns with respect to the appellant’s
family relationships. These related to discrepancies in the dates of birth of siblings
and offspring identified by Kimiya and the appellant’s mother at different times.
They also obtained the results of a DNA test that showed that the mother was not
the biological mother of either the appellant, Kimiya or Bidatu. The DNA test also
showed that Kimiya was not related to either of her siblings “as a full sibling”.
[58] The Residence Appeal Authority gave careful consideration to such
concerns. It noted however, that there was strength in the argument put forward
on behalf of the appellant’s mother for the purposes of that appeal: it was
persuaded that, notwithstanding the apparent doubt with respect to the biological
relationships, there was credible evidence of a close family relationship (see the
RAA decision at [127]). Having considered a considerable amount of psychiatric
evidence made available to it, the Authority concluded that this “appears to provide
support for the claim that [Kimiya] believed that [the mother] was her mother”
(emphasis added, at [136]). The Authority also noted that the evidence did not
rule out the possibility that the siblings did share one parent, and directed
Immigration New Zealand to consider the mother’s application again.
14
[59] Whatever concerns Immigration New Zealand had initially were clearly
addressed sufficiently, because it issued a fresh decision, granting residence to
the appellant, his mother and his sister. It is not sensible that it would have done
so if it continued to harbour serious concerns about the appellant’s eligibility for
residence.
[60] Like the Residence Appeal Authority, the Tribunal accepts that the appellant
regards the woman who brought him up as his mother. There is evidence that his
mother was one of four wives of his father and, irrespective of DNA evidence
(which was not before the Tribunal), it is not implausible that he was raised as her
child and as the sibling of Kimiya, Sada and Bidatu. The discrepancies in birth
dates must be considered in the context of the appellant’s low level of literacy. He
also stated that he did not celebrate a birthday until he came to New Zealand and
such dates have less significance in Ethiopia. There are also, in the Tribunal’s
experience, difficulties caused by conversions from the Ethiopian calendar to the
Gregorian calendar.
[61] It is correct that the appellant’s oral testimony contained evidence not
traversed in his written statement. His evidence, however, was not briefed until
the week prior to the hearing and the statement, two pages in length, is brief to say
the least. It contains a broad overview of his circumstances and does not purport
to outline the events of his life in detail. The appellant also stated that the events
in question occurred between one and two decades prior to the hearing and,
further, that it is difficult for him to recall and talk about such matters. All of those
points are plausible.
[62] With respect to the appellant’s injuries and the manner in which they were
inflicted, it is true that Dr Whiteside’s report contradicts the appellant’s claim to
have had a testicle removed. The fact that such a claim could so easily be refuted
by examination may indicate that perhaps something was lost in translation. The
clear implication of the appellant’s evidence is that he received an injury to his
testicle, and this is consistent with the evidence of Dr Whiteside, who confirms that
one of the appellant’s testicles is “atrophied”. Further, while it is true that the
appellant’s statement omits any mention of a gunshot wound to his hand, the
medical evidence confirms that he bears a wound consistent with such an injury.
[63] The Tribunal also acknowledges that the appellant’s mother and siblings
could have given evidence. In their absence, however, the Tribunal is left to
evaluate the evidence that was adduced.
15
[64] In that context, we note that the appellant’s account is broadly consistent
with information he has previously provided in connection with his predicament
and with that of his family members.
[65] For example, the Residence Appeal Authority considered a significant body
of psychiatric evidence and testimony provided in connection with the appellant’s
sister Kimiya and her experience in Ethiopia. The Authority clearly viewed that
evidence as credible and persuasive in the context in which it was asked to
consider it. It provides broad support for the appellant’s claim as to the
circumstances leading to his departure from Ethiopia and the predicament with
which his family was faced prior to coming to New Zealand.
[66] We also note that the background disclosed by the appellant in 2011 to the
Department of Corrections psychologist, Dr Natalie Hogg, was broadly consistent
with the account he now puts forward. There was no obviously self-serving reason
for the appellant to refer to his background in such terms at that time, in the
context of that interview. Dr Hogg’s interview was not undertaken for the purposes
of determining whether the appellant ought to be deported, and the Minister had
not then signed a deportation liability notice.
[67] The appellant’s account is also supported by the evidence of Dr Diressie.
We approach his testimony with a degree of caution. He is a personal friend of the
appellant, and wants him to stay in New Zealand, and the Tribunal formed the
view that aspects of his evidence were exaggerated. For example, having
described the appellant as a “mediator” and as a “peaceful person within the local
Ethiopian community”, he was unable to give any specific examples to illustrate
what he meant. However, those reservations fall some way short of a finding that
he lied when he told the Tribunal about his personal knowledge of the profile of the
appellant’s father or when he stated that he had distanced himself from the
appellant on the two occasions they met in Ethiopia.
[68] The appellant’s account is also broadly consistent with the country
information outlined below, from which it is apparent that over a period of some
decades, people of Oromo ethnicity with links to the OLF have been arbitrarily
detained and subjected to physical mistreatment by a succession of governments.
Findings of Fact
[69] The Tribunal finds that the appellant is an Ethiopian man, of Oromo
ethnicity. His father was a member and supporter of the OLF and was a
16
proponent of Oromo culture and civil and political rights. He was murdered by
Ethiopian government forces when the appellant was about 10-15 years of age.
Thereafter, until the appellant left Ethiopia in 2003, he experienced difficulties with
the Ethiopian authorities because of his relationship with his father. He was
repeatedly arbitrarily detained by the Ethiopian authorities. While detained, he
was frequently subjected to serious mistreatment. He suffered traumatic injuries
to his testicle, groin and abdomen (the latter inflicted with a knife), injuries to his
head inflicted with a bayonet, cigarette burns to his arms and the forcible, partial
removal of a tattoo with a knife. Given that these arbitrary detentions and injuries
were inflicted by the Ethiopian authorities, it is axiomatic that the appellant was not
able to seek state protection against the harm.
[70] Past acts of serious harm are not, however, of themselves evidence that
further harm will occur in the future. It is largely that risk of future harm which
informs the ‘exceptional humanitarian circumstances’ enquiry (though the lingering
effects of past harm on the psyche are not to be overlooked). It follows that it is
necessary to consider the country information in connection with Ethiopia, in order
to determine whether the appellant would currently be at risk of harm if he were to
return to Ethiopia.
The risk of harm to the appellant in Ethiopia
[71] We refer first to the 2005 Human Rights Watch report Suppressing Dissent:
Human Rights Abuses and Political Repression in Ethiopia’s Oromia Region.
While the report is now a decade old, it remains an important source of information
about the predicament of Oromo in Ethiopia and, as the later discussion of more
recent country information will illustrate, the 2005 findings by an internationallyrespected human rights monitor remain relevant today.
[72] The state of Oromia is the largest and most heavily populated in Ethiopia,
and the overwhelming majority of its residents are ethnic Oromo (see the 2005
HRW Report). Oromo make up between 30 and 40 per cent of the national
population, and their repression has been a longstanding feature of Ethiopian
history under successive regimes. Human Rights Watch describes the emergence
of Oromo nationalism as the product of the “long, difficult and often antagonistic
relationship” between the Oromo people and the Amharic/Tigrean dominated
Ethiopian state (the 2005 HRW Report). Over the years this has manifested in
cultural repression such as prohibition of the use of the Oromo language. Oromo
have also faced the exploitation of resources such as coffee and agricultural
17
produce by the federal government, without the benefits flowing back into the
region. Of most relevance to the appellant, they have also been subjected to
grievous human rights abuses over a protracted period up to the present.
[73] The OLF emerged during the 1970s in response to the oppressive regime
of the last emperor of Ethiopia, Haile Selassie. His overthrow in 1974, however,
brought about no improvement in the Oromo predicament under the dictatorship of
Mengistu Haile Mariam. His regime was, in turn, overthrown in 1991 by the
Ethiopian People’s Revolutionary Democratic Front (EPRDF), a coalition of
Tigrean and Amharic ethnically-based parties (see the 2013 HRW Report, at p13).
This initially appeared to promise an era of conciliation with the OLF, which
obtained new popularity for a time. The constitution adopted in 1994 divided
Ethiopia into nine regional states “drawn roughly along ethnic lines” (the 2005
HRW Report, p8). There was hope that cultural diversity within the country could
be appropriately manifested and the 2009 ICG Report refers to the more
enlightened policy of the EPRDF in terms of restoring Oromo cultural rights
through its use of language. However, there was no corresponding realisation of
full political and civil rights for Oromo and the relationship between the OLF and
the ruling EPRDF soon imploded.
[74] The subsequent period has seen a resumption of human rights abuses by
the authorities against Oromo in general and against those suspected of
supporting the OLF in particular. While OLF military initiatives were largely
ineffectual and it has not been regarded as a serious military threat, the Ethiopian
government has justified its ongoing repression of the OLF. The 2005 HRW
Report attributed “[p]ervasive human rights violations” to the EPRDF government
(p1) and called upon the Ethiopian government to end “deeply entrenched patterns
of human rights violations” (p3). It states that citizens were denied the freedom to
associate or freely form and express political ideas and that regional authorities in
Oromia cultivated a “climate of fear and repression” by “using state power to
punish political dissent in often brutal fashion” (p1). The gravity of state violence
against Oromo is succinctly put at p12 of the report:
“Many local authorities and security officials in Oromia routinely commit various
human rights violations against people they believe to be critical or unsupportive of
the government. These abuses range from arbitrary detention and torture to longterm patterns of surveillance and harassment that isolate targeted individuals from
their communities and destroy their livelihoods. In much of Oromia, these abuses
are so widespread and so arbitrarily inflicted that they have left many people afraid
to engage in any kind of public discussion related to issues of concern to their
communities.”
18
[75] According to the 2005 HRW Report, torture is commonly used by state
authorities, both in the course of interrogations and as a form of punishment.
Victims are tied with their arms behind their back, beaten on the soles of their feet,
and made to stand naked with a bottle of water tied to their testicles as a weight.
In some cases individuals have been imprisoned and tortured for several months
without being brought before a judge. They could be “released” by being dumped
in a public area. Human Rights Watch interviewed more than 40 people who had
been detained and released by local or security officials during the previous
five years. In each of those cases, courts or police investigators had eventually
found that the allegations against those detainees were unsupported by any
evidence. None had been charged with, or tried, for any offence, but all had been
imprisoned for weeks or months before being released. In many cases the
detainees had been subjected to torture and interrogation about OLF activities.
[76] In many cases the release from custody was simply the precursor to
ongoing harassment and intimidation of the detained person or their family (the
2005 HRW Report (pp20-22)). In some cases this continued “for years” after their
release (p20). The harassment prevented victims from earning a livelihood and
isolated them from their communities.
[77] It is clear from subsequent reports that such human rights abuses continue
to the present day. The 2009 ICG Report states that, in the preceding year,
“unsurprisingly, Oromia had the country’s highest level of reported human rights
violations. An atmosphere of suspicion, intimidation and fear prevails” (p26). It
refers to “frequent but unsubstantiated allegations of targeted killings and
disappearances of OLF members” (p26). It refers to the government’s “harsh
reaction” to opposition and dissent in the wake of demonstrations that followed the
2005 general election, in which a number of opposition parties united and won
more than 170 seats out of 547 in the lower house, and obtained control of the
Addis Ababa city council. Hundreds were killed and more than 20,000 people
were arrested.
[78]
The ICG policy briefing Ethiopia after Meles (22 August 2012) describes the
response of the authorities to that uprising (p5). It states that the EPDRF “has
become increasingly intolerant of dissent and criticism” (p1), and that (at p5):
“Subsequently, the EDPRF became more repressive. Authoritarianism was given
a veneer of legitimacy through laws that – under the guise of national security – the
parliament passed between 2007 and 2009 to stifle dissent and ensure against any
interference in government affairs.”
19
[79] The EPDRF took no risks at the next general election. Having lost more
than a quarter of seats in the 2005 election, it ostensibly won “99.6 per cent of the
vote in the 2010 elections” (the 2013 HRW Report). The implausibility of such an
election being fair is self-evident.
[80] It is apparent from the 2013 HRW Report that nothing has changed for the
better. The police and other security forces are “regularly implicated” in arbitrary
arrest, detention and the violation of basic due process rights. Detainees are held
incommunicado, in dire conditions. They are subjected to torture and ill-treatment.
They are beaten with sticks, electric cables, weapons and iron bars. Heads are
immersed in water and people are beaten and kicked while being hung upside
down. These patterns “show no sign of abating” (p14). While the 2013 HRW
Report focuses on abuse conducted at the Maekelawi police station in
Addis Ababa, the preamble makes it clear that such practices are conducted in
federal prisons, police stations, military camps and detention facilities throughout
the Oromia region.
[81] Those particularly vulnerable are said to include members of the political
opposition, particularly ethnic Oromo parties, and alleged supporters of insurgent
groups such as the OLF (p14). This is underpinned by a ruling of the Ethiopian
parliament in June 2011, proscribing the OLF as a terrorist organisation (see the
2014 AI Report, at p9). As to recent mistreatment of Oromo, the report notes:
“Between 2011 and 2014, at least 5,000 Oromos have been arrested as a result of
their actual or suspected peaceful opposition to the government, based on their
manifestation of dissenting opinions, exercise of freedom of expression or their
imputed political opinion. These included thousands of peaceful protestors and
hundreds of political opposition members, but also hundreds of other individuals
from all walks of life – students, pharmacists, civil servants, singers,
businesspeople and people expressing their Oromo cultural heritage – arrested
based on the expression of dissenting opinions or their suspected opposition to the
government. Due to restrictions on human rights reporting, independent journalism
and information exchange in Ethiopia, as well as a lack of transparency on
detention practices, it is possible there are many additional cases that have not
been reported or documented. In the cases known to Amnesty International, the
majority of those arrested were detained without charge or trial for some or all of
their detention, for weeks, months or years – a system apparently intended to
warn, punish or silence them, from which justice is often absent.”
[82] As to mistreatment while in detention, the content of the 2014 AI Report is
to the same effect as the other reports to which reference has been made.
[83] Of particular significance for the present case, Amnesty International states
that the majority of individuals arrested in Oromia interviewed by it had been
accused of supporting the OLF and makes it clear that the difficulties experienced
20
by individuals frequently arose from family connections that were in many cases
historic (see pp 10, 22 and 51–53). It states (at pp 51–52):
“Inherited suspicion reported to Amnesty International related both to recent cases
and activities of family members of those who inherit the suspicion but also, in
many of these cases, dating back to the period the OLF was part of the transitional
government between 1991 and 1992. People known to be members of the OLF at
that time (though a legal entity at that point), their families and children continued
to suffer on that basis.”
Conclusion on Exceptional Circumstances
[84] On the basis of the factual findings made by the Tribunal, and in light of the
country information outlined above, the Tribunal finds that if the appellant were to
return to Ethiopia he would be at risk of being seriously harmed. The risk is not
merely based on his ethnicity, but on his familial relationship to his father. This
has exposed him to episodes of arbitrary detention and serious physical
mistreatment in the past, and the Tribunal finds that he is still similarly at risk in the
future. It is impossible to quantify the risk. There are no means by which it can be
given a percentage or a numerical characteristic. The Tribunal finds, however,
that the risk is not based on mere conjecture. It is not merely speculative. It has a
real and substantive basis. Grave human rights abuses against Oromo linked to
the OLF have been widespread for at least a decade in Ethiopia. It is clear that
there is a sustained and ongoing policy by the state to disrupt and degrade OLF
activity, supported by harsh repression.
[85] Given the appellant’s past history, his links to his OLF-activist father and the
country information, the Tribunal is satisfied that, if he returns to Ethiopia, the risk
of arbitrary detention and serious physical mistreatment to the appellant is more
likely than not. In short, he will probably be detained and tortured. It may even be
that the risk will be particularly heightened in 2015. According to the 2014 AI
Report:
“As Ethiopia heads towards general elections in 2015, it is likely that the
government’s efforts to suppress dissent, including through the use of arbitrary
arrest and detention and other violations, will continue unabated and may even
increase.”
[86] The risk of such harm is a humanitarian circumstance and in terms of the
pool of deportation appeals generally, it is, in the sense required by the Supreme
Court in Ye (supra), exceptional. The Tribunal is satisfied that there are
exceptional circumstances of a humanitarian nature and therefore turns to
consider the second part of the first limb of the statutory test.
21
Whether Unjust or Unduly Harsh to Deport
[87] 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 his offending, and any other adverse
considerations, against the compassionate factors in favour of him remaining in
New Zealand: see Galanova v Minister of Immigration [2012] NZIPT 500426,
at [47]–[50].
[88] Dealing first with the appellant’s offending, the Tribunal is satisfied that it
was serious. There can be no argument about that, given that it involved the
sexual violation of a vulnerable victim.
[89] It is apparent from the judge’s sentencing notes that the victim was a young
woman walking home late one evening after socialising with friends in the central
city in Wellington. She was heavily intoxicated. She approached the appellant’s
workplace in order to use the toilet. One of the appellant’s colleagues led her
inside. He told her to sit on the toilet seat and to disrobe. He then forced her to
perform a sexual act upon him. At around that time, the appellant came into the
toilet and had sex with her. Another man entered the toilet and yelled at the
appellant and his colleague, enabling the young woman to walk out to the street
where bystanders came to her aid.
[90] Judge Behrens QC found that there were no matters personal to the
appellant that aggravated the offending. He referred to the fact that he had no
previous relevant convictions, and was held “by those who know you and employ
you to be a person of good character, who makes a positive contribution to [his]
community”. He gave the appellant credit of one year from a starting point of eight
years and sentenced him to seven years’ imprisonment.
[91] Balanced against the offending are the exceptional humanitarian
circumstances. As identified above, these are that the appellant would face a real
and substantive risk of serious harm if he returns to Ethiopia because of his
ethnicity and, more particularly, because of his connection with the OLF by virtue
of his father. For the reasons already given, such mistreatment is more likely than
not. In terms of injustice, New Zealand has strong (and absolute) obligations
under Article 3 of the 1989 Convention Against Torture not to refoule a person to a
country where there are substantial grounds for believing that the person is in
danger of being tortured.
22
[92] Weighing the appellant’s serious offending against the exceptional
humanitarian circumstances (notably the risk that he will be exposed to forms of
serious harm to which he has been subjected in the past, including arbitrary
detention in sub-standard conditions, and to serious physical mistreatment
amounting to torture) the Tribunal is satisfied that it is unjust or unduly harsh for
the appellant to be deported from New Zealand.
THE PUBLIC INTEREST
[93] 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.
Factors relevant to the public interest raised by this appeal include the need to
protect the public, the need for denunciation of serious crime, the enhancement of
the integrity of the immigration system and New Zealand’s observation of its
obligations under international law.
Risk of re-offending
[94] The protection of the public involves the question of the risk of re-offending
posed by the appellant. In that regard the Tribunal has for some years (following
its predecessor bodies) determined that there is a sliding scale by which the
degree of risk of future offending that the public can be expected to tolerate varies
according to the severity of the offending. The more serious the offending, the
lower the risk of re-offending must be in order for the public interest in deportation
not to be engaged.
[95] This approach was discussed by the Deportation Review Tribunal in Pulu v
Minister of Immigration DRT No 13/2007 (17 July 2007) and was subsequently
approved by the High Court in considering an application for judicial review of that
decision; see Pulu v Minister of Immigration [2008] NZAR 429.
[96] The Tribunal must therefore address the question of public safety. Given
that the appellant’s offending was serious, in order for the risk to the public to be
bearable we find that the risk of him re-offending in similar fashion would have to
be no higher than “low”, being the lowest achievable category of risk recognised
by criminogenic risk assessment tools such as the Automated Sexual Recidivism
Scale (ASRS), the New Zealand-tested tool adopted by the Department of
Corrections for risk assessment in relation to sexual offending.
23
[97] The Tribunal has been provided with a number of reports that address this
issue. These have been prepared over a period of time and in various contexts.
[98] Dr Natalie Hogg was a psychologist engaged by the Department of
Corrections.
Her report, dated 30 March 2011 was considered by the
New Zealand Parole Board in December 2011. Dr Hogg stated that, at the time
she interviewed the appellant, he was still awaiting the outcome of his appeal
against his conviction and sentence. As a result, acting on legal advice, he could
not engage with various issues that might ordinarily be canvassed in such a
meeting. Nonetheless, even in those circumstances Dr Hogg assessed him as
presenting a low risk of further serious sexual offending. Her analysis was based
upon various actuarial screening tools, including ASRS, that take into account
static risk predictors.
[99] The Supreme Court published a decision declining the appellant’s appeal
against conviction and sentence in November 2011, which cleared the way for him
to participate more fully in subsequent assessments. Two further reports were
prepared after that decision, in 2012.
[100] The first was by Paul Carlyon, also a clinical psychologist employed by the
Department of Corrections. As well as the tools adopted by Dr Hogg, Mr Carlyon
conducted tests that addressed dynamic factors personal to the appellant, rather
than simply static risk factors. Using the RoC*Rol, ASRS and the Stable-2007
actuarial tools, Mr Carlyon identified a problematic area in connection with
“capacity for relationship stability”, but nonetheless found him to be in the low risk
group on the basis of static and dynamic risk factors. Mr Carlyon concluded that:
“Actuarial and clinical assessment of relevant risk factors indicate Mr Abdula
presents a low risk of perpetrating further sexual offending.”
[101] Mr Carlyon concluded that the fact that the appellant did not admit
responsibility for his offending, his English language limitations and “most
significantly, his estimated low risk of sexual recidivism” meant that there were no
appropriate treatment options for the appellant. Instead, he recommended that a
safety plan be developed and given priority by the probation service, who would
oversee the appellant if released on parole.
[102] A privately commissioned report was provided by a third clinical
psychologist, Nev Trainor, who met with the appellant on 1 June 2012. Like
Dr Hogg and Mr Carlyon before him, Mr Trainor assessed the appellant as
presenting a low risk of re-offending.
24
[103] When it met on 6 June 2012, the Parole Board noted the large measure of
agreement between Mr Carlyon and Mr Trainor. It observed that the appellant had
completed pro-social skills courses, had maintained a low security classification in
prison and that he demonstrated a “steadily improving grasp of the English
language”. It also noted the reservations of Mr Carlyon and Mr Trainor with
respect to the appellant’s rehabilitative needs “centred on offence related sexual
arousal, violence, and antisocial habits of thinking”.
[104] The Parole Board observed that psychological services had endeavoured to
assist the appellant to develop a risk management plan, and stated that they had
“made a good fist of it”. The Board determined that the appellant posed no undue
risk to the safety of the community and directed his release on parole on
20 June 2012. Release was subject to a number of conditions that dictated where
he was to live, imposed a partial curfew, directed him to attend psychological
assessment as required, and directed him not to consume or possess alcohol or
illicit drugs and not to contact the victim or his co-offender.
[105] A further Parole Board hearing was held on 9 October 2012 to review the
appellant’s compliance with those conditions after his release. At that time, the
Parole Board observed the appellant’s psychological counselling had not yet
commenced, but noted that his parole was progressing well. A further hearing
was set down for January 2013.
[106] By the time the Parole Board reconvened on 24 January 2013, it had
available to it a further report dated 21 December 2012, prepared by
Janine Hurley, a Department of Corrections probation officer. She stated that the
appellant had complied with all standard conditions of parole, reported when
required and attended all home visits. He had not been the subject of any
enforcement action for non-compliance. He remained on the ‘wait list’ to see a
psychologist and had not been referred for any other interventions or programmes.
Changes to his accommodation had been made by agreement, and she stated
that his “risk management plan continues to be a major focus of the management
of his parole”.
[107] The Parole Board observed that the appellant was employed and imposed
further special conditions in connection with his residence, a curfew and the need
to attend further Parole Board hearings. It directed the appellant to appear before
the Parole Board again three months later.
25
[108] A further Department of Corrections report on 15 March 2013 confirmed
that he had complied with all standard conditions of parole since his last
appearance.
[109] Clinical psychologist Jennifer Jones prepared a further report dated
18 December 2013, for the Probation Service. Having met briefly with the
appellant in early November 2013, her report states that the appellant was able to
provide an adequate understanding of his risk management plan, and noted that
he has the support of numerous people in his life.
Assessment of risk to the public
[110] Counsel for the Minister submits that the risk of the appellant re-offending is
higher than low, notwithstanding the reports of the various psychologists and
probation officers before the Tribunal. In support of his submission, counsel refers
to the fact that the appellant has not received any rehabilitative treatment and the
fact that he continues to deny that he committed the offence for which has been
convicted.
[111] However, both of these factors have been taken into account by the various
psychologists in reaching their respective conclusions.
[112] Mr Trainor was satisfied that the fact that the appellant does not admit his
offending does not, in itself, affect the risk he poses in the future. His conclusion is
evidenced-based. In his opinion, the important aspects of the appellant’s risk
profile include the fact that he has come to accept and understand that his
behaviour was wrong and harmful and that it brought significant shame upon
himself and his community. The appellant expressed a sense of guilt and
empathy for his victim that, in Mr Trainor’s appraisal, “appear genuine”. Having
taken all of the appellant’s circumstances into account, Mr Trainor assessed the
risk of the appellant re-offending as low.
[113] The appellant’s initial reluctance to admit his offending was part of the
reason he was not an appropriate candidate for rehabilitative treatment plans
(which typically revolve around the acceptance of responsibility as a fundamental
part of the treatment process). Again, the psychologists assessed the appellant as
presenting a low risk of further serious offending notwithstanding the absence of
treatment, recommending a risk management plan instead of treatment.
26
[114] The risk of re-offending can never be lower than “low”. It can never be zero
for the simple reason that the task of assessing what might happen in the future is
inherently speculative. No psychologist’s report viewed by the Tribunal has ever
purported to find an offender’s risk to be non-existent. Such a report would be
suspect by its very nature.
[115] The speculation upon which the Tribunal must rely, however, is not mere
conjecture, but the expert opinions of a succession of psychologists, whose
findings take into account the appellant’s particular circumstances.
[116] The Tribunal also takes notice of other relevant matters in this context.
[117] The appellant had never previously offended in any way and it is apparent
from the comment of Judge Behrens QC that the appellant’s offending is at odds
with the manner in which he had previously lived his life. His Honour stated that:
“I have to say that having read the references that people have written about you
[appellant], I am once again stunned that someone about whom such good things
are written, is appearing before me on a charge of rape.”
[118] The appellant’s offending is also at odds with the manner in which he has
subsequently lived his life. It is now more than two-and-a-half years since he was
released from prison. During that time his conduct and his living conditions have
been closely monitored by the Department of Corrections. He has been in stable
employment and has re-established his links with the broader community, in which
he appears to have a reasonable level of support. He has complied with all
expectations imposed upon him and there is no suggestion that he has offended
again in any way.
[119] In order to further safeguard the public interest the Tribunal takes into
account the fact that it will impose, as a condition of this appeal, an order under
section 212 of the Act. This suspends the appellant’s liability for deportation,
rather than bringing it to an immediate end. This will serve the dual purpose of
both reminding the appellant of the consequence of further offending and providing
the public with an additional sanction should the need arise. The Tribunal notes in
passing that this additional safeguard would not be available to it if the appellant’s
circumstances were to be evaluated in the context of a refugee and protection
claim rather than in the present context.
[120] For all of these reasons, the Tribunal is satisfied that the appellant presents
a low risk of re-offending.
27
Denunciation and deterrence
[121] Counsel for the Minister submits that, in this case, the need for denunciation
and condemnation of offending that was abhorrent and repugnant is such that,
regardless of any lack of appreciable risk of reoffending, there is a public interest
in deportation to reflect the need for denunciation and deterrence. He refers us to
N (Kenya) v Secretary of State for the Home Department [2004] EWCA CIV 1094,
an appeal against a deportation order brought by a man sentenced to 11 years’
imprisonment for abduction, threats to kill, rape and false imprisonment. In
declining that appeal May LJ held that, for very serious crimes, a low risk of
reoffending is one, but not the most important public interest factor (at [65]). The
public policy objective to express society’s revulsion and condemnation of the
criminality is also engaged. May LJ referred, at [91], to:
“… relevant public interest considerations arising from the abominable nature of
these offences which led to a strong (even if not legally conclusive) presumption in
favour of deportation, or more correctly, that his deportation would be in the public
interest.”
[122] Counsel for the Minister submits that the appellant’s offending falls into the
category of very serious offending referred to in N (Kenya), and that it mandates
deportation irrespective of any assessment of his risk of re-offending.
[123] The first point to make is that the public interest in the risk of recidivism and
the public interest in denunciation and deterrence are but two of the greater pool of
public interest issues which the Tribunal is required to consider. Both are relevant
considerations, however, neither is necessarily determinative in any given case.
We are required to weigh all adverse public interest considerations against all
positive public interest considerations, before reaching an overall conclusion on
where the public interest lies.
[124] Turning to the submission in the present case, the Tribunal has previously
considered the type of offending which might invite considerations of revulsion or
repugnance within the ambit of N (Kenya). As was noted in Pulu (supra), such a
finding is reserved for crimes at the upper end of the spectrum. Examples of the
application of these principles include:
(a)
The rape of a 13-year-old girl on five occasions, leading to pregnancy
and adoption: Vaafai v Minister of Immigration DRT 029/08
(29 April 2009).
28
(b)
Four counts of unlawful sexual connection with a female aged 12-16
and two counts of male rapes female aged 12-16, in which the
offending involved daily violations, over the course of a year, of a
young girl in the appellant’s care, as “entirely repugnant to the
community” and the Tribunal described it as “towards the extreme
end of serious offending”: Nofoaiga v Minister of Immigration DRT
013/06 (6 April 2009).
(c)
The repeated rape and sexual abuse of a young girl in the appellant’s
care between the ages of 9 and 13, resulting in an abortion. The
offending involved repeated violence and cruelty and was described
as “abhorrent” and “at the upper end of the spectrum”: Falevalu v
Minister of Immigration [2013] NZIPT 500217.
(d)
The premeditated, planned and repeated rape of the appellant’s
niece in her own home when aged 8 and 10; Manase v Minister of
Immigration [2012] NZIPT 500522.
(e)
The terrorising of a three-year-old child in the appellant’s care, over
an extended period, through continual beatings with various
implements, including a baseball bat, eventually leading to the child’s
death; Fa’asisila [2011] NZIPT 500158.
[125] All of these decisions feature elements such as offending that is
premeditated, repeated and sustained, aggravated by additional violence or
cruelty and sometimes involving elements of grave breaches of trust and
vulnerability.
[126] Society will condemn any incident of rape, and it is obvious that the
appellant’s offending was serious, given the sentence imposed upon him.
However, it was opportunistic rather than premeditated. It was not prolonged and
it does not reflect the additional features that give rise to revulsion and repugnance
over and above the condemnation that would follow sexual offending of any type.
Other relevant considerations
[127] Other matters are also relevant to the engagement of the public interest.
[128] Counsel for the Minister submitted that the Tribunal must take into account
the impact of the appellant’s offending upon the victim. He submitted that it can be
inferred that the emotional impact upon her is continuing and long-term. The
29
Tribunal has little difficulty in accepting that this might be the case. However, the
Victim’s Rights Act 2002 gives any victim the right to communicate their views to
the Tribunal. The victim in this instance did not seek to do so and there is no
evidence as to her view in the context of the deportation liability of the appellant.
No more nuanced or more specific inference can be drawn.
[129] There is also public interest in the observance of New Zealand’s
international obligations, as Hansen J held, in Garate v Chief Executive of
Department
of
Labour
(High
Court,
Auckland
CIV-2004-485-102,
30 November 2004).
[130] New Zealand has international obligations arising under the 1966
International Covenant on Civil and Political Rights (the ICCPR) and the 1989
Convention against Torture.
[131] Article 3 of the Convention Against Torture imposes an absolute prohibition
on returning a person to a country where they are at risk of being tortured, as
defined in Article 1 of that Convention. The breach of that obligation would be a
serious matter and the Tribunal is satisfied that there is a strong public interest in
New Zealand observing its obligations under that Convention.
[132] Article 7 of the ICCPR provides that “No one shall be subjected to torture or
to cruel, inhuman or degrading treatment or punishment”, and Article 9 provides
that “No one shall be subjected to arbitrary arrest or detention”. Article 10 provides
that “All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person”.
[133] The Tribunal has found that the appellant is at risk of forms of serious harm
that would violate any or all of these fundamental rights.
[134] While this is not a refugee or protected person appeal, the public interest in
New Zealand upholding its obligations to provide protection from violations of the
Convention Against Torture and the ICCPR is underlined by their incorporation
into New Zealand’s domestic law under sections 130 and 131 of the Act.
Upholding those obligations will therefore also enhance the integrity of the
New Zealand immigration system.
Conclusion on Public Interest
[135] Bearing in mind that the risk of re-offending is established as sufficiently low
that the public interest is not engaged (and is thus a neutral factor in our
30
consideration) it is possible to consider the weighing of the other public interest
considerations.
[136] Weighing the adverse public interest considerations (a need to denounce
and deter sexual offending) against the positive public interest considerations (the
public interest in New Zealand’s observance of its international law obligations
under Article 3 of the Convention against Torture and Articles 7, 8 and 10 of the
ICCPR), the Tribunal is satisfied that it would not be contrary to the public interest
to allow the appellant to remain in New Zealand, subject to the condition we intend
to impose.
DETERMINATION AND ORDERS
[137] 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
[138] The appeal being allowed, the Tribunal has the power to suspend the
deportation liability of the appellant for a period not exceeding five years. The
suspension may be on conditions.
[139] The appellant has been convicted of serious offending. While the risk of
him re-offending is low, there is value in suspending liability for deportation, both to
assuage public concerns about any residual risk of such serious offending and
also to reflect the limits of the community’s ability to tolerate such offending. The
Tribunal accordingly orders, pursuant to section 212(1), that the deportation
liability of the appellant be suspended for a period of five years from the date of
this decision, subject to the following condition:
(a)
The appellant is not to be convicted of any offence committed during
the period of suspended deportation liability, in respect of which he is
sentenced to a term of imprisonment.
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[140] The appeal is allowed in the above terms.
“A N Molloy”
A N Molloy
Member
Certified to be the Research
Copy released for publication.
A N Molloy
Member