Public interest criterion in deportation appeals

New Zealand courts have provided substantial guidance on the interpretation and application of the "contrary to the public interest" test in deportation appeals.

The Two-Stage Process

The courts consistently affirm that the Tribunal’s decision-making involves a two-stage process. First, the Tribunal must determine whether there are exceptional humanitarian circumstances making deportation unjust or unduly harsh. Only if this threshold is met does the Tribunal proceed to the second stage: assessing whether, in all the circumstances, it would be contrary to the public interest to allow the appellant to remain: Taylor v Mbie; Huang v The Minister of Immigration; Tuitupou v The NZ Immigration and Protection Tribunal .

Nature of the Public Interest Test

The public interest limb is not a mere formality; it is a substantive and independent inquiry. The Tribunal must be satisfied that allowing the appellant to remain is not contrary to the public interest, even if the humanitarian threshold is met: Ao v the Immigration and Protection Tribunal; Jw v Chief Executive of The Ministry of Business, Innovation and Employment . The courts have emphasized that a general concern for the integrity of the immigration system is insufficient to outweigh the humanitarian finding; there must be something more specific and substantial in the circumstances of the case: Jw v Chief Executive of The Ministry of Business, Innovation and Employment .

Factors Considered

The Tribunal’s assessment of the public interest is broad and fact-specific. Key factors may include:

• Risk of Reoffending and Public Safety: The likelihood and seriousness of future offending are important considerations. The Supreme Court in Samuela Faletalavai Helu v Immigration and Protection Tribunal and subsequent cases have endorsed a "sliding scale" approach, where the gravity and probability of future offending inform the weight given to public safety concerns (Ah v The Immigration and Protection Tribunal).
• Impact on Victims: The Tribunal must consider any submissions from victims, as required by section 208 of the Act (Chan v Minister of Immigration).
• Nature and Seriousness of Past Offending: The seriousness of the appellant’s past conduct, especially criminal offending, is relevant to the public interest assessment (Minister of Immigration v Jooste).
• Best Interests of Children: While not paramount, the best interests of any children affected by the decision are a primary consideration (Minister of Immigration v Jooste).
• International Obligations: The Tribunal may consider New Zealand’s obligations under international covenants, such as the protection of the family (Samuela Faletalavai Helu v Immigration and Protection Tribunal).

Balancing Exercise

The public interest assessment is distinct from the humanitarian inquiry. Personal and compassionate factors that led to a finding of unjust or unduly harsh consequences are not automatically relevant to the public interest limb unless they also have a public dimension, such as the protection of the family under international law (Samuela Faletalavai Helu v Immigration and Protection Tribunal [2015] NZSC 28).

The Tribunal must weigh the adverse humanitarian consequences of deportation against the broader public interest. This balancing exercise is central to the public interest inquiry (Minister of Immigration v Jooste). The Tribunal’s discretion is wide, but it must be exercised in accordance with the statutory framework and relevant case law.

Even if the Tribunal finds that deportation would be unjust or unduly harsh, the appeal can still be dismissed if it would be contrary to the public interest to allow the appellant to remain (Bio Talakatoa O'Brien v Immigration and Protection Tribunal Hc Wn). Thus, the public interest test is potentially decisive.

Threshold for "Contrary to the Public Interest"

The courts have made clear that a general concern for the integrity of the immigration system is not enough to satisfy the public interest test. There must be something more specific and substantial in the circumstances of the case (Jw v Chief Executive of The Ministry of Business, Innovation and Employment). This ensures that the public interest limb is not used to routinely override compelling humanitarian circumstances.

Exceptions and Caveats

There are several important caveats to the interpretation of "contrary to the public interest" in deportation appeals:

• No Exhaustive List of Factors: The Act does not specify all the factors the Tribunal must consider, leaving the assessment open to the facts of each case.
• Overlap with Humanitarian Factors: While the public interest assessment is distinct from the humanitarian inquiry, there may be overlap where personal circumstances have a public dimension, such as the protection of the family under international law.
• Victim Submissions: The Tribunal must consider any submissions from victims, which may influence the public interest assessment.
• Best Interests of Children: The best interests of children are a primary, but not paramount, consideration.
• International Obligations: The Tribunal may consider New Zealand’s obligations under international covenants, such as the protection of the family.

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