IMMIGRATION AND PROTECTION TRIBUNAL
NEW ZEALAND

[2015] NZIPT 600192

AT AUCKLAND

Appellant:

BAE, Young Jin

Respondent:

The Minister of Immigration

Before:

Judge P Spiller

Counsel for the Appellant:

C Curtis

Counsel for the Respondent:

C Pendleton

Date of Hearing:

16 December 2015

Date of Decision:
23 December 2015
___________________________________________________________________
DEPORTATION (RESIDENT) DECISION
___________________________________________________________________

[1]
This is an appeal against liability for deportation on humanitarian grounds
by the appellant, a 22-year-old citizen of South Korea and a New Zealand resident
since 5 March 2008, against his liability for deportation.

THE ISSUE
[2]
This appeal is brought on humanitarian grounds. In broad terms, the
appeal requires the Tribunal to consider whether the appellant has exceptional
circumstances of a humanitarian nature, arising out of his nexus in New Zealand
and the difficulty of relocating elsewhere, that would make it unjust or unduly harsh
for him to be deported from New Zealand, and whether it would not in all the
circumstances be contrary to the public interest to allow him to remain in New
Zealand.
[3]
For the reasons that follow, the Tribunal allows his appeal and directs that
his liability for deportation be suspended for five years, subject to the conditions
outlined below.

 2

BACKGROUND
[4]
The appellant was born in South Korea in October 1993. His parents had
three sons, of whom the appellant is the middle child. The appellant attended
primary school in South Korea.
[5]
The appellant arrived in New Zealand in January 2003, aged nine years,
and was granted a visitor’s permit. In March 2003 he was granted the first in a
series of student permits, and attended school in New Zealand. His older brother
had come to New Zealand in December 2000, but the appellant lived separately
from his brother after arrival. In December 2003, the appellant and his brother
returned to South Korea for five months. In May 2004, they returned to
New Zealand with their parents and youngest brother.
[6]
In October 2007, the appellant’s father applied for residence under the
Skilled Migrant category, and included the appellant as a secondary applicant.
[7]
On 5 March 2008, the appellant was granted a residence class permit,
along with his parents and two brothers. The appellant’s parents and brothers
have since become New Zealand citizens.
[8]
On 27 February 2010, the appellant (aged 16 years) and the victim (also
16 years, and at that time a friend of his) went to the house of AA, another friend
of the appellant. At the house, the victim was asked to play drinking games and
she became intoxicated and felt unwell. At one point she lay down on the floor
because she was unable to walk properly. The appellant put his finger into her
vagina, despite her pushing him away. The appellant took the victim into AA’s
bedroom. The appellant continued to touch her. He was told by AA to leave the
room, and AA raped the victim on the bed. The appellant then entered the
bedroom, AA left the room, and the appellant then raped the victim despite her
protests for him to stop. Other men then came into the room. Later that day when
the victim confronted the appellant and AA about the events, they verbally abused
her.
[9]
On 16 February 2012, the appellant was found guilty, convicted and
sentenced for the offences of male rapes female over 16 years and unlawful
sexual connection with a female over 16 years. Following a successful appeal to
the Court of Appeal, a new trial was ordered. At the new trial, he was again found
guilty.

 3

[10] On 6 December 2013, the appellant was convicted and sentenced for the
offences of male rapes female over 16 years and unlawful sexual connection with
a female over 16 years. He was sentenced to six years’ imprisonment.
[11] In the appellant’s sentencing, the judge noted that there were aggravating
features. There was a vulnerable victim who was heavily and obviously
intoxicated, who was small and young, and who did not and could not consent to
what took place. There was a breach of trust as the victim had been a friend of
the appellant for years and he used that trust to lure her into the bedroom. There
was planned and premeditated offending in that he and his friend acted together to
sexually abuse a young drunk woman. The victim was raped by two men in turns;
she was left naked and terrified, extremely vulnerable, humiliated by others
coming into the room, and was later verbally abused by the appellant and his
friend. The above events had a devastating effect on the victim and this was likely
to be very long-term. The result was a starting point of 10 years’ imprisonment for
the rape charge, with a small increase because of the charge of sexual violation.
[12] The judge noted that there were mitigating factors. There was some
remorse, but not a great deal. There was a significant discount for youth, to allow
for some degree of impulsiveness, the harsher effects of imprisonment at his age,
the greater capacity for rehabilitation and reintegration into society, and the
possible characterisation of the offending as “youthful stupidity mixed with some
arrogance”. A reduction of 40 per cent was allowed.
[13] On 20 January 2015, the respondent issued a Deportation Liability Notice.
This was on the grounds that the appellant had been convicted of offences for
which the court had the power to impose a sentence of imprisonment of 20 years;
and he had committed these offences not later than two years after he first held a
residence class visa.
[14] On 20 February 2015, the appellant appealed to the Tribunal against his
liability for deportation on humanitarian grounds.
[15] The appellant left school because of his criminal convictions. He worked as
a caregiver (2009 to 2010) and a waiter/chef at a restaurant (2010 to 2011) before
serving eight months in prison. He then worked as a kitchen hand and a barista at
a cafe (November 2012 to December 2013), before entering prison for the second
time where he remained for 15 months.

 4

[16] On 2 March 2015, the appellant was released from prison on parole. He
was subject to standard release conditions and a range of special conditions for
18 months. He recently completed an alcohol course with CADS, which consisted
of an eight-week maintenance programme. He lives with his parents and brothers.
He is employed as barista at a cafe. He aims to remain in his present city until his
special release conditions are completed and then move to Wellington where he
wishes to develop his skills as a barista and train as a pastry chef.

THE APPELLANT’S CASE
[17] The Tribunal heard evidence from the appellant, his parents, his two
brothers, and a clinical psychologist.
Evidence of the Appellant
[18] The appellant and the victim were close friends for some time prior to the
incident. On the night in question they became intoxicated. At one point she lay
down on the floor. The appellant became sexually aroused and started to engage
sexually with her. He took her to his friend’s bedroom and left her there. Later the
appellant returned and raped her. The following day she confronted him and his
friend for raping her. The three started arguing and the two men became verbally
aggressive. He did not think that he had raped her because she only said stop
verbally and there was no action of pushing him away or calling for help and no
violence. Therefore he pleaded not guilty when he was prosecuted.
[19] The appellant was on bail and did not breach his conditions. After he was
convicted he served eight months’ imprisonment. He appealed successfully and,
while the rehearing was pending, he was on bail for a year and did not breach his
conditions. He was convicted again and he served a further 16 months’
imprisonment. His risk of re-offending was assessed as low. In prison he
employed the workbooks and plans provided, and tried to do all he could to assist
with his rehabilitation. The Parole Board was pleased with his efforts. After he
was released he completed a programme of eight weeks’ rehabilitation.
[20] The appellant stated that he is very remorseful for what he did, and his
regret and shame will remain for the rest of his life. He made a terrible mistake
and he will carry the consequences of this for the rest of his life. He betrayed the
trust that his friend had in him and deeply hurt her and her family, as well as his
own family. He regrets having pleaded not guilty, thus forcing her to travel twice

 5

from South Korea (where she now lives) to attend the trials. He should have
accepted the first conviction and simply served his sentence. However, it was
during the second trial and while being in prison thereafter that he fully realised the
seriousness of what he had done and how much harm he had caused the victim.
[21] The appellant has lived in New Zealand for over 10 years and all his close
family and friends are here. He came to New Zealand at a young age and has
very little recollection of South Korea. His Korean verbal skills are limited and he
is much more comfortable communicating in English. He will have difficulty
adjusting to South Korean life and in finding a job. He does not want to cause his
family more hardship. There has been some contact with family members in
South Korea, but, apart from his paternal grandmother, his relatives there have
very little contact with him.
[22] If the appellant is allowed to continue to live in New Zealand, he plans to
live with his parents and brothers at home while he continues working as a head
barista at a cafe. He enjoys his work. He helps out at the family restaurant owned
by his parents. He plans to go to Wellington to gain more experience and learn
more about coffee making. His goal is to become a famous barista and start up
his own cafe. He also wants to assist people with disabilities.
[23] The appellant has looked after autistic youth in the past, and volunteers for
youth work at his church. He tries to stay positive and believes that it is important
that one “lives up to the results and outcomes of one’s actions”. He asks for a
chance to live his life as a normal person.
Evidence of Bae Hwi Young (the Appellant’s Father)
[24] Mr Bae came to New Zealand with his family in 2004. He works as a pastor
and runs a small Korean restaurant with his wife. He, his wife and two sons
(excluding the appellant) became citizens in March 2015.
[25] Mr Bae realises that his son has done wrong and caused suffering to the
victim, her family and also to his son’s family. His son is remorseful and realises
that he has done wrong.
[26] Mr Bae wants to help his son rehabilitate fully into society. It would be
almost impossible for him to live in South Korea as he has limited experience in
Korean culture and society. He does not speak Korean fluently. His only family
members there are his two grandmothers, paternal uncle and aunt, and maternal

 6

uncles. He has had limited contact with them apart from his paternal grandmother,
who could offer a home in the short-term. He would not be able to get a job or get
assistance from the government.
[27] If Mr Bae’s son is deported, he would not be able to continue working as a
pastor. His family would face discrimination. It would be extremely difficult to visit
the appellant in South Korea with the whole family. It is common for Korean
children to live with their parents and family until they marry.
Evidence of Kim Young Min (the Appellant’s Mother)
[28] Mrs Bae has lived in New Zealand since 2004.
restaurant in the city. She is now a New Zealand citizen.

She owns a Korean

[29] The appellant does not have an adequate understanding of life in South
Korea and has limited vocabulary in Korean. His only family members there are
his two grandmothers, his three maternal uncles, and a paternal uncle and aunt.
They could provide only limited support to Mrs Bae’s son. He does not have any
friends there. He will not be able to go to university, and a degree is crucial in
finding employment. Mrs Bae will have to support him financially. Korean parents
generally live together with their children and take care of them until they are
married.
[30] Mrs Bae accepts that the appellant has done wrong. However, he has lived
by helping people around him. He has a new passion in making coffee. Mrs Bae
cannot imagine losing her son, him going so far away and not being able to see
him. He is a good son, brother and member of society.
Evidence of Bae Young Kwang (the Appellant’s Older Brother) (“Caleb”)
[31] Caleb is the appellant’s older brother. He came to New Zealand for the first
time in December 2000. He recently graduated from the University of Auckland
and works as an intern in a marketing company. He is a New Zealand citizen.
[32] Caleb was shocked when he heard about the appellant’s charges as it was
very uncharacteristic for him to be charged with a serious crime. The appellant
has been more than a brother to him; he was also his best friend. His family was
socially isolated as a result of the appellant’s offending.
[33] The family are very close to each other. They do not have to worry about
financial problems. The appellant has all the support that he needs from the

 7

family. They deeply love and care for him and want to help him stand on his feet
again and make sure that he is fully rehabilitated.
[34] If the appellant is deported, the family would again be discriminated against
by their Korean community. In South Korea the appellant would have to join the
army immediately. He would not be able to adapt to Korean culture, traditions and
society.
Evidence of Bae Seon Kyo (the Appellant’s Younger Brother) (“Paul”)
[35] Paul is the appellant’s younger brother. He is 17 years old and is attending
school. His closest relationship is with the appellant, who is like a best friend and
is always there for Paul. The appellant means the world to Paul and nothing can
replace him. His family’s relationship with the appellant will never be broken
because the family knows how loving and caring he is.
[36] In South Korea the appellant would have to start all over again. He will not
be able to manage by himself. He will need to do military service.
[37] Since the appellant has left prison, he seems to have been educated and
transformed into a new person who thinks more carefully about his actions.
Evidence of Amanda McFadden (Consultant Clinical Psychologist)
[38] Ms McFadden interviewed the appellant, his parents and his brothers, and
reviewed a range of documentation (which has also been provided to the
Tribunal).
[39] Ms McFadden concluded that the appellant presented with a low risk of
sexual re-offending over the next five-year period. This risk finding reflected the
young age at which the index offending occurred, the absence of any other history
of offending, the appellant’s acceptance of the offending and insight into the
factors that contributed to the offending, and the positive progress that he had
made in addressing the risk factors identified by previous assessors. The index
offending was serious, and this was understood and accepted by the appellant
and his primary supports. The assessment also identified the presence of multiple
pro-social attitudes, insight, employment, community-social engagement and
connection, and abstinence from alcohol. The appellant had demonstrated
genuine remorse, recognition of the hurt that he had caused to the victim, and a
high level of insight, which gave hope for the future.

 8

[40] Deportation would have a significant negative impact on the appellant. He
was strongly bonded to his parents and they remained a primary source of social
support and social influence. Deportation and the resulting separation from his
family would represent a significant loss for the appellant and would have a range
of negative impacts including emotional distress, social-emotional isolation, and
loss of social supports including employment, probation services, his peer groups
and church parish. It was unclear if he would be able easily to replicate his life
goals in South Korea due to the different nature of the environment and other
pressures that he might face in terms of relocation, compulsory military service, his
lack of formal qualifications and the need to find employment.
[41] All of the appellant’s family members expressed fear and anxiety about the
prospect of the appellant being deported. All family members derived a sense of
comfort and security from their family relationships. In particular the loss of the
relationship between the appellant and his younger brother was likely to have
significant long-term effects. The deportation of the appellant would likely
exacerbate the feelings of guilt, blame and regret of his father and older brother.
All family members are concerned about the appellant’s ability to reintegrate
successfully into South Korean life and culture.
Documents and Submissions
[42] For the appellant, counsel
(30 November 2015), together with:

has

lodged

written

submissions

Statements
(a)

from the appellant (25 November 2015);

(b)

from the appellant’s father (24 November 2015);

(c)

from the appellant’s mother (24 November 2015);

(d)

from the appellant’s older brother (24 November 2015);

(e)

from the appellant’s younger brother (25 November 2015);

(f)

from a friend of the appellant who has known him for 10 years
(30 November 2014). The appellant is a good caring friend. When
the writer had to go the South Korean army, the appellant gave him
courage. He is a reliable friend that the writer looks up to;

 9

(g)

from a long-time friend of the appellant whom he has known for eight
years (5 December 2014). The appellant is a very kind person with a
positive sense of humour. He is a very hard-working person and has
a can-do attitude; he was a role model for his friends. His family will
give him all the support in the world;

Correspondence
(h)

a letter (20 November 2015) from the owner of a cafe stating that the
appellant has been employed there for 10 months and has become
head barista. The appellant provides great customer service, has a
positive attitude, and shows impressive knowledge and skill in
making coffee. He has made an impact on the cafe and is an
important team member. He also has a very close relationship with
his family;

(i)

letters and information from Spectrum Care;

(j)

a letter from the counsellor at the appellant’s school (28 May 2012);

(k)

a bundle of letters (various dates) from friends in support;

(l)

letters from the appellant, prior to his release from prison, seeking
assistance and counselling, and acknowledgements thereof;

(m)

letters from the appellant’s church and participants regarding the
appellant’s voluntary work that he did for the church and its
community;

Offending and conviction
(n)

emails (9 and 10 July 2014) sent on behalf of the appellant’s victim,
stating that she wishes the appellant to stay in New Zealand for as
long as possible. For her, South Korea is a place of security and
safety. She does not deem the appellant’s deportation to be the
wisest response as she does not want to have the chance of seeing
him in South Korea. Their social circle was not particularly big and
they had multiple mutual friends, making it easy for her to be
vulnerable. She considers that the South Korean system is much
less concerned about women’s rights than the New Zealand system;

 10

(o)

the full Parole Assessment report for the Parole Board;

(p)

a New Zealand Herald article on the appellant’s offending;

(q)

the amended decision of the Parole Board (4 February 2015) noting
that the psychological report rated his risk of re-offending as low and
that he did not meet the risk for attendance at a formal treatment
programme;

(r)

a psychological report (26 November 2015) by Amanda McFadden;

Certificates and courses
(s)

a
New
Zealand
Institute
of
Management
Certificate
(25 September 2014) showing that the appellant had completed a
course in the principles of small business management;

(t)

three certificates of Bible study (10 July 2014, 21 September 2014
and 22 October 2014);

(u)

the appellant’s Care
(22 September 2014);

(v)

Care NZ’s After Care and Reintegration Plan;

(w)

CADS Getting Started;

(x)

a series of Bible correspondence course certificates obtained by the
appellant while in prison;

(y)

a Department of Corrections Drug and Alcohol Test result showing a
negative result for the appellant (24 February 2014);

(z)

NZQA certificates awarded to the appellant in 2011 and 2012;

(aa)

a Hospitality Standards Institute certificate (7 November 2011)
awarded to the appellant for barista skills;

(bb)

a college certificate of participation (2010);

NZ

Relapse

Prevention

Workbook

 11

Miscellaneous

[43]

(cc)

material concerning unemployment and the importance of family in
South Korea;

(dd)

letters of support (undated) commenting on the appellant’s skills as a
barista; and

(ee)

the appellant’s driver’s licence (21 June 2011).

In summary, the appellant submits:
(a)

There are exceptional humanitarian circumstances that make it
unjust or unduly harsh for the appellant to be deported. The
appellant was young when he offended. He has shown deep
remorse and taken steps to rehabilitate himself. He complied with
his bail conditions for over two years. Since leaving South Korea
in 2003, he has been back only once, and has very little connection
with South Korea. He has been in New Zealand since he was nine
years old, spent more than half his life and formative years here, and
identifies as a New Zealander. His immediate family are all
New Zealand citizens and live in New Zealand, and they are close to
and supportive of the appellant. He is employed and has many
letters of support from the community.

(b)

It is not in the public interest to deport the appellant. He is genuinely
remorseful for his offending and has a low risk of recidivism; he was
very young at the time of his offending, has now matured,
understands the reality of his offending, and has put any likelihood of
offending far behind him; his family bond is also strong. He is in
employment and is able to be a contributing and hardworking
member of the community, and he is not a risk to the New Zealand
public.

THE RESPONDENT’S CASE
[44]

For the respondent, counsel has lodged:
(a)

a copy of the file prepared for the Minister of Immigration before the
deportation liability notice was issued; and

 12

(b)
[45]

submissions (11 December 2015).

In summary, the respondent submits:
(a)

The appellant is a single young man who is capable of going back to
South Korea and finding work. He has some knowledge of Korean
and his English language skills would be useful in South Korea. He
still has some family living in South Korea, whom he visited in 2004,
and he has had some contact with his grandmother there. His
immediate family would be able to visit him there and support him
financially. He intended to move away from his family in the future,
to a different centre in New Zealand.

(b)

The seriousness of the appellant’s offending is reflected in the
aggravating factors listed by the sentencing judge and the end
sentence of six years’ imprisonment. Any injustice or harshness
does not go beyond the level that must be regarded as acceptable to
preserve the integrity of New Zealand’s immigration system.

(c)

The seriousness of the appellant’s offending outweighs the public
interest in family unity.

STATUTORY GROUNDS
[46] The appellant’s liability for deportation arose under section 161(1)(c) of the
Immigration Act 2009 (the Act) because he has been convicted of an offence and
sentenced to imprisonment for a term of six years, the offence being committed
not later than two years after he first held a residence class visa.
[47] Section 206(1)(c) of the Act provides the appellant with a right to appeal his
liability for deportation. The grounds for determining humanitarian appeals against
deportation are set out in section 207 of the Act:
“(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.”

 13

[48] In regard to section 47(3) of the Immigration Act 1987 (which is analogous
to section 207(1)(a) above), the majority of the Supreme Court stated in Ye v
Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 that three ingredients
had to be established: (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.
[49] Because there are family interests at issue in this appeal, regard must be
had to the entitlement of the family to protection as the fundamental group unit of
society, exemplified by the right not to be subjected to arbitrary or unlawful
interference with one’s family – see Articles 17 and 23(1) of the 1966 International
Covenant on Civil and Political Rights (the ICCPR). Whether such rights would be
breached depends on whether deportation is reasonable (proportionate and
necessary in the circumstances) – see the United Nations’ Human Rights
Committee’s General Comment 16 (8 April 1988) and the discussions in Toonen v
Australia (Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April
1994) and Madafferi v Australia (Communication No. 1011/2001, UN Doc
CCPR/C/81/D/1011/2001, 26 August 2004, para 9.8).

ASSESSMENT
Whether there are Exceptional Circumstances of a Humanitarian Nature
[50] As to whether circumstances are exceptional, the Supreme Court noted, in
Ye v Minister of Immigration at [34], that they “must be well outside the normal run
of circumstances” and, while they do not need to be unique or rare, they do have
to be “truly an exception rather than the rule”.
The appellant’s personal circumstances
[51] The appellant has been in New Zealand for nearly 13 years, having arrived
here at the age of nine years. Apart from a five-month return trip to South Korea
12 years ago, he has lived, studied and worked in New Zealand to the present.
Seven-and-a-half years ago he became a New Zealand resident. He has been in
employment as a caregiver of autistic young people, and more recently as a
barista in cafes. He is involved in his church community, primarily as a volunteer
doing youth work. He has built up a network of supportive friendships.
[52]

The appellant’s parents and his two brothers are New Zealand citizens who

 14

are committed to remaining in New Zealand. The appellant lives with them, and
they form a tightly-knit family group who give considerable support to each other.
The appellant’s removal from New Zealand would cause considerable emotional
loss both to them and to the appellant.
[53] The appellant has had little connection with his home country since his
return to New Zealand with his nuclear family 11-and-a-half years ago. He has a
limited ability to speak Korean and has not developed his written skills in the
language. He has had occasional contact with his paternal grandmother, but very
limited contact with his maternal grandmother, and uncles and aunt in South
Korea. He identifies himself as a New Zealander and would face a difficult period
of readjustment if he were required to return to South Korea.
[54] The psychologist’s report by Ms McFadden provides the following
observations. The appellant is strongly bonded to his parents and they remain a
primary source of social support and social influence. All family members derive a
sense of comfort and security from their family relationships. The bond between
the appellant and his younger brother is particularly close.
His parents
acknowledge his offending and its gravity, and have assisted him in coming to
terms with his actions and their consequences. His family are very settled in
New Zealand and are not in a position to relocate easily to South Korea or to
provide other practical supports. He has access to a range of positive social
supports and connections including employment, probation services, peer groups
and his church community. Deportation of the appellant would have a significant
negative impact on him personally, and significant and wide-ranging negative
effects on all family members.
[55] The Tribunal also has regard to the views of the appellant’s victim as to his
possible deportation to South Korea. The Tribunal notes that the victim opposes
his deportation as she lives in South Korea and does not want to meet him there
as this would make her vulnerable.
Conclusion on Exceptional Circumstances
[56] In light of the above circumstances, and particularly the length of time that
the appellant has been in New Zealand from a young age, the close connection
that he has with his tightly-knit nuclear family in New Zealand, and the views of the
victim, the Tribunal is satisfied that there are exceptional circumstances of a
humanitarian nature.

 15

Whether it would be Unjust or Unduly Harsh for the Appellant to be Deported
[57] Where, as in this case, exceptional humanitarian circumstances are found
to exist, the Tribunal must go on to assess whether those circumstances would
make it unjust or unduly harsh for the appellant to be deported. According to the
Supreme Court in Guo v Minister of Immigration [2015] NZSC 132 at [9], this
assessment is to be made “in light of the reasons why the appellant is liable for
deportation and involves a balancing of those considerations against the
consequences for the appellant of deportation”.
[58] In considering whether it would be unjust or unduly harsh for the appellant
to be deported from New Zealand, the Tribunal bears in mind the reasons why he
was served with a Deportation Liability Notice. This Notice was served because
he has been convicted of offences for which the court had the power to impose a
sentence of imprisonment of 20 years, and he had committed these offences not
later than two years after he first held a residence class visa.
[59] The Tribunal notes the seriousness of the appellant’s offending. Nearly six
years ago, he committed the offences of the rape of a 16-year-old girl and unlawful
sexual connection with her. The seriousness of the offending was emphasised by
the sentencing judge’s starting point of 10 years’ imprisonment and the end
sentence of six years’ imprisonment. The sentencing judge referred to the
vulnerability of the victim, the breach of trust involved, the planned and
premeditated nature of the offending involving himself and another man, and the
long-term and devastating effect on the victim.
[60] The Tribunal also notes with concern that the appellant maintained his not
guilty plea through two trials which took place over nearly four years after the
offending. The non-acceptance by the appellant of his guilt resulted in requiring
his victim to return from overseas and twice endure the pain and humiliation of
giving evidence under cross-examination.
[61] However, the Tribunal notes, as did the sentencing judge, that the appellant
was only 16 years old at the time of his offending. The judge allowed a discount of
40 per cent from the sentence starting-point, to allow for some degree of
impulsiveness, the harsher effects of imprisonment at his age, the greater capacity
for rehabilitation and reintegration into society, and the possible characterisation of
the offending as “youthful stupidity mixed with some arrogance”.
[62]

The Tribunal also notes the considerable efforts that the appellant has

 16

made to gain deeper insight into his offending and to rehabilitate himself. He had
no convictions prior to the above offending, and has not offended since. He
complied with all his conditions of bail prior to serving his prison sentence, and
was released from prison at an early stage by the parole board.
[63] The psychologist’s report by Ms McFadden notes the appellant’s
acceptance of the offending and insight into the factors that contributed to the
offending, and the positive progress that he has made in addressing risk of
reoffending. She also reports that deportation would have a significant negative
impact on the appellant. Separation from his family would represent a significant
loss for the appellant and would have a range of further negative impacts. In
South Korea he would face a different environment and other pressures in terms
of relocation, compulsory military service, the lack of formal qualification and the
need to find employment. The loss of the appellant for his family in New Zealand
would also be significant.
[64] The Tribunal also has regard to the views of the appellant’s victim as to his
possible deportation to South Korea. As noted above, the victim opposes his
deportation as she lives in South Korea and does not want to meet him there.
They share mutual friends and she predicts that there is a real chance that, if the
appellant is deported, she will encounter him, which would be distressing and
traumatic for her. The Tribunal accepts that, even if she does not meet the
appellant, the fact of their shared circle of friends means that this is not a case in
which there is no more than a random chance of her encountering him (as would
normally be the case in a large city) and that the risk is sufficiently high that she
will understandably feel significant insecurity and anxiety. She will likely find her
daily life compromised by the knowledge of his presence – a burden she should
not be expected to endure.
[65] On balance, and without in any way minimising the seriousness of the
appellant’s offending and the consequences of his lengthy denial of guilt, the
Tribunal finds that his deportation would be unjust or unduly harsh. Sending the
appellant back to South Korea would result in a level of harshness to him and to
the victim which, the Tribunal finds, outweighs the gravity of the offending.
Public Interest
[66] In cases where the Tribunal has determined that the appellant has
exceptional humanitarian circumstances which would make it unjust or unduly
harsh to deport the appellant, it must also be satisfied that it would not, in all those

 17

circumstances, be contrary to the public interest to allow the appellant to remain in
New Zealand.
[67]

As Hansen J held in Garate v Chief Executive of Department of Labour (HC

Auckland, CIV-2004-485-102, 30 November 2004) at [41], (discussing section 63B
of the 1987 Act, the predecessor to the later section 47(3)):
“Section 63B(2)(b) requires all circumstances to be looked at afresh through the
prism of the public interest. For this purpose, it seems to me, the Authority is
required to weigh those factors which would make it in the public interest for the
appellant to remain against those which make it in the public interest that he leave.
The former are likely to include (although will not be confined to) the exceptional
circumstances of a humanitarian nature relied on under subpara (a), for it must be
in the public interest that a family with established roots in this country should be
permitted to stay, and to stay together, and that international conventions directed
to those ends are respected.”

[68] This approach was endorsed by the majority of the Supreme Court in Helu v
Immigration and Protection Tribunal and Minister of Immigration [2015] NZSC 28,
which agreed that the factors personal to an appellant and his family taken into
account when deciding whether it was unjust or unduly harsh to deport him, and
that finding in itself (Elias CJ at [8]), are relevant to the analysis of whether it would
not be contrary to the public interest to allow him to remain in New Zealand.
Risk of re-offending
[69] The risk of re-offending is an important adverse public interest
consideration. The degree of risk of future offending which the public can be
expected to tolerate varies according to the severity of the offending. The more
serious the crime, the lower the chance of re-offending must be if it is not to trigger
an adverse public interest finding. See Pulu DRT 13/2007 (17 July 2007) at [101][114], approved by the High Court in Pulu v Minister of Immigration [2008] NZAR
429 at [12].
[70] The appellant’s offending is serious as evidenced by the maximum prison
sentence attached to the offences and the end sentence imposed. As noted
above, the consequences of the offending for the victim were exacerbated by the
appellant’s nearly four-year denial of guilt and the consequential endurance by the
victim of two trials.
[71] However, the appellant has made considerable effort to rehabilitate himself.
In prison his efforts at reform were largely self-directed. The Parole Board
released him after he had served only two years of his prison sentence. The Board
noted that the Correction Department’s psychological report rated his risk of re-

 18

offending as low. After he was released, he then completed a rehabilitation
programme of eight weeks.
[72] The recent psychological report of Ms McFadden concludes that the
appellant presents with a low risk of sexual re-offending over the next five-year
period. This risk finding reflects the young age at which the index offending
occurred, the absence of any other history of offending, the appellant’s acceptance
of the offending, his insight into the factors that contributed to the offending, and
the positive progress that he has made in addressing the risk factors identified by
previous assessors. The seriousness of the offending is understood and accepted
by the appellant and his primary support people. The assessment also identifies
the presence of multiple pro-social attitudes, insight, employment, communitysocial engagement and connection, and abstinence from alcohol.
Family unity
[73] As noted above, there is a public interest in the preservation of family unity
and in the observance of New Zealand’s international obligations in that regard:
Garate v Chief Executive of Department of Labour (HC Auckland, CIV-2004-485102, 30 November 2004) at [41].
[74] The appellant is part of a tightly-knit nuclear family comprising himself, his
parents and his two brothers. All but the appellant are New Zealand citizens who
are committed to remaining here. The psychologist report of Ms McFadden states
that the deportation of the appellant would have a significant negative impact on
the appellant and members of his family.
The victim’s views
[75] In weighing those factors which would make it in the public interest for the
appellant to remain, against those which make it in the public interest that he
leave, the Tribunal has regard to the views of the victim of the appellant’s
offending. As noted above, the victim has expressed a strong preference for the
appellant to remain in New Zealand. For her, South Korea is a place of security
and safety, and she does not want to have the chance of seeing him in South
Korea. The Tribunal does not doubt the suffering that the victim has undergone as
a result of the appellant’s offending and its consequences, and acknowledges her
request that this suffering not be exacerbated by the appellant’s deportation.

 19

Conclusion on Public Interest
[76] Weighing the adverse public interest considerations against the positive
public interest considerations, the Tribunal is satisfied that it would not be contrary
to the public interest to allow the appellant to remain in New Zealand. However, in
light of the appellant’s significant offending, it is appropriate that he be subjected to
deterrence against future offending through the suspension (rather than
cancellation) of his Deportation Liability Notice, subject to strict conditions.

DETERMINATION AND ORDERS
[77]

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 him to remain in New Zealand.

[78] The Tribunal orders, pursuant to section 212(1) of the Act, that the liability
for deportation of the appellant be suspended for five years, on condition that he
commit no further offences during this period resulting in imprisonment.
[79]

The appeal is allowed in the above terms.

“Judge P Spiller”
Judge P Spiller
Chair
Certified to be the Research
Copy released for publication.

Judge P Spiller
Chair