AU (Thailand) v Chief Executive of the Ministry of Business, Innovation and Employment
[2024] NZHC 2993
•15 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-1891
CIV-2023-404-1903 [2024] NZHC 2993
UNDER the Immigration Act 2009 BETWEEN
AU (THAILAND)
First Applicant
AU (THAILAND)
Second ApplicantAND
THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT
Respondent
(see over for further respondents)
Hearing: 15 February 2024 Appearances:
S Carey for the Applicants
Z McCoy for the Respondents
Judgment:
15 October 2024
Reissued:
25 February 2025
JUDGMENT OF ROBINSON J
This judgment was delivered by me on 15 October 2024 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Edison Tam, Auckland; Crown Law, Wellington
Counsel: S Carey, Auckland
AU (THAILAND) v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2024] NZHC 2993 [15 October 2024]
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT
Second Respondent
Introduction
[1] The first applicant (the wife) and the second applicant (the husband) are Thai citizens in a de facto relationship. They have been living and working in New Zealand unlawfully for 25 years.
[2] The applicants have a 20-year-old daughter and a 13-year-old son. They were both born in New Zealand. The daughter is a New Zealand citizen. The son is not, and he is deemed to be unlawfully in New Zealand.1 Neither the daughter nor the son have ever lived in Thailand. The son has never visited.
[3] On 7 June 2023, the Immigration and Protection Tribunal (the Tribunal) dismissed humanitarian appeals by the applicants against their liability for deportation.2 In the same decision, the Tribunal allowed a humanitarian appeal by the son, to whom it granted a resident visa.
[4]In separate applications, heard together, the applicants apply for leave to:
(a)appeal against the decision of the Tribunal on a question of law under s 245 of the Immigration Act 2009 (the Act); and
(b)commence judicial review proceedings under s 249 of the Act.
Factual Background
The Tribunal sets out the relevant background to the matter as follows:
[5] The wife was born in Thailand in 1967. She was previously married, and she and her former husband had a son, born in Thailand in 1997. He is now 25 years of age and lives with the wife’s family in Thailand. The wife declares that her parents and two brothers also reside in Thailand.
[6] On 21 August 1997, the wife arrived in New Zealand, aged 30, as the holder of a one-month visitor visa. She has remained in New Zealand unlawfully since September 1997.
1 Section 374(1)(a)(vii) of the Immigration Act 2009 provides that a person born in New Zealand after 1 January 2006 is deemed to be unlawfully in New Zealand if both parents are unlawfully in New Zealand. The daughter was born before 1 January 2006, but the son was not.
2 AU (Thailand) [2023] NZIPT 505834-835 [Decision].
[7] The husband was born in Thailand in 1966. He has two adult sons, born in 1989 and 1992, who live in Thailand. His widowed mother and four siblings also remain living there.
[8] On 28 February 1998, the husband arrived in New Zealand, aged 32, as the holder of a three-month visitor visa. He has remained unlawfully in New Zealand from the end of May 1998 onwards.
[9] In July 1998, the wife was served with a removal order (now termed a deportation order), after Immigration New Zealand located her unlawfully performing sewing work. She did not depart New Zealand
and it is not evident that Immigration New Zealand took any further compliance action.
[10] The husband and wife met in New Zealand in early 1999 and commenced a de facto relationship.
[11] In October 2002, the couple’s daughter was born. She is a New Zealand citizen by virtue of her birth in this country and is now aged 20 years.
[12] In November 2002, the couple sought Ministerial intervention for the grant of visas, on the basis that they had a New Zealand-citizen child (the daughter) and their own respective businesses; the wife as a sewer, and the husband as a plasterer. In February 2003, the then Associate Minister refused to intervene, noting that the wife had been served with a removal order.
[13] In March 2003, the husband requested the grant of a visa as an exception to instructions (under what was then section 35A of the Immigration Act 1987). Immigration New Zealand observed that the husband’s de facto partner (the wife) was subject to a removal order and refused to consider this request.
[14] In the years following, four further requests for Ministerial intervention were made on behalf of the couple, in 2004, 2005 and 2007. In respect of each request, the Associate Minister refused to intervene, and the couple was advised to depart New Zealand immediately.
[15] In January 2010, the couple’s son was born. Like his parents, he is a citizen of Thailand although he has never travelled there. He is now 13 years of age and in his first year of secondary school. He has never held lawful status in New Zealand.
[16] In December 2020, current counsel requested the grant of one-day visas to the appellants, pursuant to section 61 of the Immigration Act 2009 (the Act), so that they could appeal to the Tribunal. Immigration New Zealand refused the request in February 2021.
[17] In May 2021, counsel sought Ministerial intervention for the grant of one-day visas to the appellants, to enable them to lodge humanitarian appeals with the Tribunal. This request was successful, and the appellants were directed to be granted one-day visas, subject to Immigration New Zealand cancelling the removal order that remained in force in respect of the wife (which subsequently occurred).
[18] On 5 July 2022, the husband, wife and son were granted one-day visas, following which they became unlawful.
[19] On 11 August 2022, the appellants lodged the present appeals against their liability for deportation with the Tribunal.
[6] There are other factors the Tribunal considered, and which counsel refer to in submissions.
[7] In the material the applicants provided to the Tribunal in support of their humanitarian appeals, they each advised that they have paid all their taxes and had no criminal convictions. However, the New Zealand Police vetting report subsequently obtained by the Tribunal revealed that in 2014 the husband was convicted on 13 counts of tax evasion for offences committed between 2007 – 2013. He was sentenced to four months’ home detention, 200 hours’ community work and ordered to pay reparation of $102,000 at a rate of $100 per week, which he has been doing since May 2019.
[8] This conviction does not give rise to the husband’s liability for deportation, but the Tribunal considered it relevant to his humanitarian appeal.3
[9] The Tribunal also took into account the fact that the applicants have been sending remittance monies back to Thailand. The District Court Judge who sentenced the husband noted that during the time of his offending he and the wife had remitted more than $200,000. The Tribunal noted that more recently they have remitted approximately $100,000 per year.4
The Tribunal’s Decision
[10] The Tribunal referred to s 207(1) of the Act, which sets out the grounds that must be established for the Tribunal to allow a humanitarian appeal. In its decision the Tribunal identified the primary issues on appeal to be:5
… whether the couple’s length of stay in New Zealand and their consequent settlement here, the interests of their New Zealand-citizen daughter, and the best interests of their teenage son, gives rise to exceptional humanitarian
3 At [74], discussed at [28] below.
4 At [107].
5 At [3].
circumstances, whether those circumstances would make it unjust or unduly harsh for each of the appellants to be deported from New Zealand and, if so, whether it would not in all the circumstances be contrary to the public interest to allow each of them to remain in New Zealand.
[11]In summary, the Tribunal determined that:
(a)there were exceptional humanitarian circumstances in respect of the wife and the husband, and in respect of their son;6
(b)it would be unjust and unduly harsh to deport the son,7 but it would not be unjust and unduly harsh to deport his parents;8 and
(c)it would not be contrary to the public interest to allow the son to remain in New Zealand,9 but the Tribunal was “not satisfied it would not be contrary to the public interest” to allow the applicants to remain.10
[12] On this basis, the Tribunal allowed the son’s appeal and ordered under s 210(1)(a) of the Act that he be granted a resident visa. The Tribunal declined the applicants’ appeals but granted them temporary work visas under s 216(1)(b) so they had time to “wind up their lives in New Zealand” and make plans for their return to Thailand.11
Exceptional circumstances of a humanitarian nature
[13] In assessing whether there were exceptional circumstances of a humanitarian nature, the Tribunal concluded that the greatest impact of deportation will be felt by the son.12 The Tribunal found it was in his best interests to remain living in New Zealand.13
6 At [65].
7 At [89].
8 At [87] and [90].
9 At [94] and [112].
10 At [113]. The Tribunal’s finding that it would not be unjust or unduly harsh to deport the applicants was sufficient to dispose of their humanitarian appeal, but “for completeness” the Tribunal also considered the “public interest” limb of the statutory test: see Decision, above n 2, at [95]; and below at [40].
11 At [122].
12 At [64].
13 At [47] and [64].
[14] As noted, the son was born in New Zealand and has never travelled to Thailand. He considers New Zealand his home and wishes to stay here.14 The Tribunal inferred from recent school reports that he may be facing some challenges in his learning.15 The Tribunal noted the applicants’ claims their son cannot read or write Thai which, “if accepted at face value,” would pose a very real issue in terms of his schooling in Thailand, magnifying his current learning challenges in New Zealand.
[15] The Tribunal found the son to be well-settled, and that the stability of school life will be important for his ongoing development and educational success.16 Whilst not unmanageable, moving to Thailand would be a significant change, and adapting to schooling there would require a significant adjustment.17 The Tribunal went on:18
It is not evident that the son would suffer from a reduced standard of living that would be detrimental to his health or wellbeing [in Thailand]. However, for all intents and purposes, the son is a young New Zealander, now entering his teenage years. The Tribunal accepts that it would be in his best interests to remain in New Zealand, at least for the foreseeable future, in an educational environment in which he is settled with his peers.
[16]The Tribunal concluded that:
[65] The Tribunal has considered the circumstances of the appellants, and the daughter, as presented. These circumstances include the lengthy period of time that the husband and wife have been living in New Zealand and their children’s settlement here, and the best interests of the son who has only known New Zealand as his home and is shortly to embark on the more significant years of his education. The Tribunal is satisfied that these factors amount to exceptional humanitarian circumstances.
Unjust or unduly harsh – the applicants
[17] The Tribunal noted that the applicants and their son are liable for deportation because they are unlawfully in New Zealand. However:19
… the situation for the husband and wife is very different from that of their son and assessment of whether their deportation would be unjust or unduly harsh will be assessed separately.
14 At [41].
15 At [42].
16 At [46].
17 At [46] – [47].
18 At [68].
19 At [68].
[18] In finding that it was not unjust or unduly harsh to deport the husband and wife, the Tribunal considered the following factors:
(a)They had been in New Zealand unlawfully for 25 years. They decided to develop a family here knowing they had no lawful or permanent right to remain.20
(b)Their employment and self-employment (sewing and plastering) would not have afforded them a viable pathway to a work or resident visa.21
(c)They have remitted significant sums of money to family in Thailand whilst having no right to work here.22
(d)The husband’s conviction and their lengthy period of working unlawfully, which the Tribunal found undermined their professed commitment to New Zealand.23
(e)Balanced against their prolonged unlawful stay in New Zealand, deportation would require them to uproot from their long-established family life and self-employment in New Zealand and re-establish themselves in Thailand.24
(f)They would be able to re-enter the workforce in Thailand. They would not earn as much in Thailand as they did in New Zealand but this did not make their deportation unjust or unduly harsh.25
Unjust or unduly harsh – the son
[19] As for the son, the Tribunal found that he was “entirely without blame for his immigration status and the decisions of his parents which have seen him live all his
20 At [71].
21 At [72].
22 At [74].
23 At [74].
24 At [75].
25 At [76].
life thus far in New Zealand”.26 The Tribunal considered the consequences of deportation for him to be more severe. He would be traveling with his parents, but deportation would remove him (most likely permanently) from the only country that he knows:27
At the age of 13 years, where New Zealand is home and peer support is becoming increasingly important, and where there may already be some challenges in the son’s learning in this familiar environment, deportation to an entirely new country, without a significant measure of support, is unlikely to be conducive to his best interests.
[79] The Tribunal does not suggest that relocation to Thailand for the son is impossible or would be detrimental to his wellbeing. It may prove to be the opposite, but it is currently unknown. Rather, the Tribunal is alert to the fact that it may pose a very real challenge for him and should be managed appropriately. The Tribunal is satisfied that, for the son, the level of harshness arising from deportation is beyond what is acceptable to preserve the integrity of the immigration system, per Ye.
[20] Importantly, the Tribunal considered that the most significant consideration and consequence of deportation is the potential for the son and his parents to be separated. The Tribunal found that:28
At the son’s age of 13 years, he is still a dependent child and will be reliant on his parents for practical, financial and emotional support. Their deportation from New Zealand would give rise to a significant change in circumstances for the son, whether he accompanies them to Thailand or remains in New Zealand. Separation for the son would be harsh, but the statutory test requires that the Tribunal assess whether it would be unduly harsh. The impact of separation on the son will be deferred for a period, by the grant of temporary visas to the husband and wife that the Tribunal intends to order.
[21] The Tribunal went on to record that the son would not be able to remain in New Zealand without a legal guardian.29 The Tribunal suggested various possibilities, including that “it may be possible” for his adult sister to “assume guardianship responsibility”.30 Alternatively, the Tribunal found that the applicants:31
26 At [78].
27 At [78].
28 At [85].
29 At [86].
30 At [86].
31 At [86]. The Tribunal also recorded that Immigration New Zealand “may even see fit to grant one of his parents a temporary visa which would allow the son to have the ongoing presence of a parent while he studies, although this scenario would be entirely at the discretion of Immigration New Zealand”.
… may be able to come to some other arrangements, bearing in mind that they have developed very lengthy relationships with several families in their cultural community and they appear to have a nephew here.
[22] In any event, the son would be able to travel to Thailand without forfeiting his right to return to New Zealand. With regards to potential language barriers and his future education, the Tribunal also considered it “likely” that the applicants could afford private education for their son, which could avoid the need for him to learn Thai.32 The Tribunal considered that whether the applicants would actually do so was a separate issue.33
[23] Ultimately, the Tribunal considered that it was for the applicants, not the Tribunal, to determine the best arrangement for their son:34
[87] Whatever arrangement is made for the son to give effect to his best interests, it is something for the husband and wife to manage as a family. It does not make their deportation unjust when balanced against the circumstances that have given rise to their current predicament and the integrity of New Zealand’s immigration system. The exceptional humanitarian circumstances found by the Tribunal in respect of the three appellants are not of such magnitude that the Tribunal is satisfied that it would be unduly harsh for the husband and wife to be deported.
…
[91] In reaching a different outcome for the appellants on this part of the statutory test, the Tribunal is mindful that the son is still a minor and may well find himself separated from his parents. The husband and wife will likely also be separated from their adult daughter. However, to the extent that such family separation will occur, this is a choice for the family to make, bearing in mind their son’s bests interests and their ability to maintain their family unit with him in Thailand. The Tribunal is satisfied that deportation of the husband and wife is proportionate and necessary in the circumstances.
Public interest
[24] The Tribunal found there was no negative public interest in having the son remain in New Zealand.
[25] In terms of the applicants, the Tribunal observed that, having found that it was not unjust or unduly harsh to deport the husband and wife, it was unnecessary to
32 At [44].
33 At [44].
34 At [87] and [91].
consider the “public interest” stage of the inquiry. However, it did so “for completeness”. To that end, the Tribunal was not satisfied that it would not be contrary to the public interest to allow the husband and wife to remain in New Zealand.35
[26] The Tribunal again acknowledged that it would likely be in the best interests of the applicants’ son (and in their daughter’s interests) to remain in New Zealand, and for the applicants to remain with them. The Tribunal noted the public interest in protecting families and ensuring that New Zealand’s international obligations are observed.36
[27] On the other hand, the Tribunal identified the following considerations it considered relevant:
(a)The public interest in protecting the integrity of the immigration system, noting that the applicants have been in New Zealand unlawfully for 25 years and worked throughout this time without being entitled to do so.37
(b)The husband’s conviction in 2014 on 13 charges of tax evasion, while having sent over $200,000 back to Thailand in the years before then.38 The husband has been paying court-ordered reparation on a monthly basis since May 2019. The Tribunal noted that no explanation was offered as to why there was a four-year delay in commencing those payments.39
(c)The applicants’ dishonest representations made to the Tribunal, including that they had paid tax and never committed a crime.40
35 At [113].
36 At [96].
37 At [97].
38 At [98].
39 At [99].
40 At [101] – [104].
(d)The applicants’ access to government support such as working for families, Covid-19 support payments and their son’s education, to which they had no lawful right to access.41
(e)Remittance of significant monies back to Thailand, considerably in excess of the Court-ordered reparation which the husband is paying at
$400 per month.42
Legal Principles
Humanitarian appeals
[28] The grounds for determining a humanitarian appeal are set out in s 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.
[29] There are three ingredients to s 207(1)(a): (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the appellant to be removed from New Zealand.43
[30] Exceptional circumstances must be “well outside the normal run of circumstances”, and although they “do not have to be unique or very rare… they do have to be truly the exception rather than the rule”. 44 Circumstances of a humanitarian nature must be the consequence or effect of the deportation, and will relate to an appellant’s welfare, safety and happiness.45
41 At [105].
42 At [106] – [110].
43 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34] – [38], per Blanchard, Tipping, McGrath and Anderson JJ, interpreting the essentially identical predecessor of s 207.
44 At [34].
45 Minister of Immigration v Q [2020] NZCA 288 at [31].
[31] Deportation will be “unduly harsh” where there is a level of harshness beyond that which must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system.46 The Supreme Court found in Guo v Minister of Immigration47 that:
[9] Whether deportation would be “unjust or unduly harsh” is to be assessed in the 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. The public interest is not immaterial to the application of s 207(1)(a) but is primarily relevant to the application of s 207(1)(b). In determining whether deportation would be unjust or unduly harsh, the primary focus is on the personal circumstances of the person in respect of whom deportation is proposed and those of immediate family members who will be affected by that person’s deportation.
[32] As the applicants’ son is a child, the Tribunal is obliged to have regard to his best interests under art 3(1) of the United Nations Convention on the Rights of the Child (UNCRC) when assessing s 207(1)(a).48 The son’s best interests are a primary (but not the paramount) consideration.49 They are to be genuinely assessed and must be afforded substantial weight.50 Assessing the best interests of the child requires careful analysis and identification of: (i) what those interests are and (ii) the consequences of their disappointment.51 The family unit is also protected under the International Covenant on Civil and Political Rights (ICCPR),52 which also prohibits families from being subjected to arbitrary or unlawful interference.53 If the Tribunal is satisfied the three “ingredients” to s 207(1)(a) are present, the Tribunal must then move on to the public interest inquiry described in s 207(i)(b). This requires the Tribunal to consider whether, “despite the injustice or undue harshness, it would in all
46 Minister of Immigration v Q, above n 45, at [34] – [35].
47 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.
48 Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
49 Ye v Minister of Immigration, above n 43, at [24].
50 O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599, [2012] NZAR 1033 at [32]; and Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at [49]. See also ZH (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 at [29] – [30] per Lady Hale SCJ.
51 Kumar v Immigration and Protection Tribunal [2018] NZHC 2928 at [60], citing O’Brien, above n 50, at [32].
52 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) [ICCPR], art 23(1).
53 ICCPR, above n 52, art 17(1).
the circumstances be contrary to the public interest to allow the person to remain in New Zealand”.54
[33] The focus at this stage is on community interests.55 Matters that were relevant to the unjust or unduly harsh finding must be considered in assessing the public interest where they are relevant to it, along with the public interest in avoiding unjust or unduly harsh outcomes.56 This can include family unity and the rights of children, and any other relevant international obligations.
[34] If a court were to find that it would be unjust or unduly harsh to deport an applicant, it must then determine the question or questions of law arising in the proceedings.57 It may then:
(a)confirm the decision in respect of which the appeal has been brought; or
(b)remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or
(c)make such other orders in relation to the matter as it thinks fit.
Applications for leave to appeal/review
[35] A party may only appeal against or seek judicial review of a Tribunal decision with the leave of this Court (or, failing that, the Court of Appeal).58 These statutory leave requirements plainly indicate Parliament’s intention to limit such appeals and reviews.59 Appeals may only be on questions of law, so the High Court’s role on appeal is limited to cases that would clarify the law and determine its proper
54 Ye v Minister of Immigration, above n 43, at [30].
55 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [170].
56 At [169] and [171].
57 Immigration Act, s 245(4).
58 Immigration Act, ss 245(1) and 249(3).
59 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 972, [2018] NZAR 1120 at [26].
construction.60 Not every alleged error of law is of such importance, either generally or to the parties, to justify leave being granted.61
[36] To obtain leave, an applicant must show a seriously arguable error of law (appeal) or a seriously arguable issue for review (review), in each case being one of general or public importance or one that for any other reason should be considered by the High Court.62 When considering whether to grant leave to bring judicial review proceedings, the Court must have regard to whether the review proceedings involve issues that could not be adequately dealt with in an appeal.63
[37] The assessment and weighting of the evidence are matters for the Tribunal, so will seldom amount to an error of law.64
[38] It is accepted that “an ultimate conclusion of a fact-finding body can sometimes be so insupportable — so clearly untenable — as to amount to an error of law”.65 This will only be the case, however, where the conclusion is “unsupported by evidence or one that is inconsistent or in conflict with the evidence”.66 These thresholds present a “high hurdle”.67
[39] This Court has recognised that challenges to factual findings are not properly matters for judicial review.68 In the context of an application for leave to appeal under s 245, any alleged factual errors must amount to an error of law. Justice Kós in Taafi v Minister of Immigration set out a “triple hurdle” which must be passed in order for an alleged factual error to justify leave, namely a seriously arguable case that: (i) the Tribunal’s factual findings are in fact erroneous; (ii) the alleged errors are in
60 At [26]. See also Hai v Minister of Immigration [2019] NZCA 55, [2019] NZAR 1867 at [36], citing Waller v Hider [1988] 1 NZLR 412 (CA) at 413.
61 Waller v Hider, above n 60, at 413, as cited in Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 59, at [26]; and Hai v Minister of Immigration, above n 60, at [36].
62 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 59, at [24]; and Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [12].
63 Immigration Act, s 249(6)(a).
64 Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [55], citing Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [34].
65 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].
66 JO v Chief Executive of the Ministry of Business, Innovation, and Employment [2015] NZCA 482 at [17], citing Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL) at 31.
67 Chorus Ltd v Commerce Commission [2014] NZCA 440 at [110] – [111].
68 See for example AP v Immigration and Protection Tribunal [2016] NZHC 1085 at [24].
combination so grave as to constitute an error of law; and (ii) that the question of law is one of general or public importance, or for some other reason ought to be considered on appeal.69
[40] Justice Kós went on to say that it was a “hard ask” for an applicant to show that an error of law based on alleged factual errors will be a matter of general or public importance, no matter how profound the alleged error.70 He also observed, in relation to whether there was “some other reason” why the alleged error ought to be put before the High Court, that this would require exceptional circumstances, “involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing”.71 That approach was affirmed by the Court of Appeal in Machida v Chief Executive of Immigration New Zealand.72
Grounds of appeal/grounds of review
[41] The applicants appeal on the grounds that the Tribunal erred in law in ruling that it would not be unjust or unduly harsh to deport the applicants, and in failing to rule that it would not in all the circumstances be contrary to the public interest to allow the applicants to remain in New Zealand.
[42] Mr Carey for the applicants submits that the proposed appeal raises the following questions of law:
(a)whether the Tribunal correctly applied s 207 of the Act when it determined that it would not be unjust or unduly harsh for the husband and wife to be deported and that it would be contrary to the public interest to allow the husband and wife to remain in New Zealand;
(b)whether the Tribunal failed to properly take the best interests of the son and daughter into account as a primary consideration under s 207; and
69 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19]. The third “hurdle” is the statutory requirement set out in s 245(3).
70 At [19(c)].
71 At [19(c)].
72 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
(c)whether there was an evidential basis for the Tribunal’s findings about potential guardian arrangements for the son.
[43] Mr Carey says that these questions of law should go to the High Court because of their general or public importance, and because of their effect on the applicants and their children, including by splitting their family unit.
[44] Mr Carey submits further that the proposed judicial review (for which a draft statement of claim has been provided) raises the following main grounds of review:
(a)whether the Tribunal erred in law by concluding that it would not be unjust or unduly harsh to deport the husband and wife;
(b)whether the Tribunal erred in law by concluding that it would be contrary to the public interest to allow the husband and wife to remain in New Zealand;
(c)whether the Tribunal failed to consider relevant considerations or relied on irrelevant considerations when determining that it would be contrary to the public interest to allow the husband and wife to remain in New Zealand;
(d)whether anybody acting judicially and correctly understanding the law could have reached the conclusion that it would be unjust or unduly harsh to deport the husband and wife; and
(e)whether any reasonable decision maker, having made the findings of fact made by the Tribunal, could have declined to rule that it would in such circumstances be unjust or unduly harsh to deport the husband and wife.
Further evidence
[45] The applicants wish to adduce further evidence, namely an affidavit sworn by each of the applicants and one from their daughter. MBIE opposes. Ms McCoy for
MBIE submits that the proposed evidence does not meet the threshold of being credible, fresh and cogent.
Legal principles
[46] An applicant can file affidavits in support of an application for leave under s 245 of the Act, provided they are confined to matters relevant to the grant of leave.73 The Court can also accept new evidence on applications under ss 245 and 249 in such manner as it thinks best serves the interests of justice.74 The Court will consider whether the evidence is credible, fresh and cogent.75 Evidence that is not fresh may still be admitted in compelling circumstances.76 The Court will consider whether the evidence would be admissible on appeal/review should the application be granted, and whether its admission is consistent with the scheme of the Act, taking into account that under s 226 it is for the applicant to establish their case.77
[47] Mr Carey accepts that the proposed new evidence could “theoretically” have been adduced before the Tribunal. However, he submits that the evidence should be treated as fresh because it responds to incorrect speculation by the Tribunal which the applicants could not reasonably have foreseen. In particular, he cites the Tribunal’s conclusion that the applicants could afford to send their son to private school in Thailand, and that his sister or others could become his guardian in New Zealand. In any event, Mr Carey says the evidence is so fundamental to the decision that it should be admitted even if it is not fresh, to ensure that the interests of justice are served.
[48] Ms McCoy submits that the applicants could, with reasonable diligence, have placed the proposed evidence before the Tribunal. She points out that the Tribunal prompted the applicants to provide further evidence on specific issues including the current circumstances of the son and the daughter, the family’s settlement and integration in New Zealand, and the applicants’ plans for their children if they were deported. Ms McCoy says it is not seriously arguable that the Tribunal made a
73 NM (Fiji) v Minister of Immigration [2020] NZHC 2077 at [3].
74 Hai v Minister of Immigration, above n 60, at [25].
75 CD v Immigration and Protection Tribunal [2015] NZCA 379, [2015] NZAR 1494 at [24].
76 Hai v Minister of Immigration, above n 60, at [28], citing Rae v International Insurance Brokers
[1998] 3 NZLR 190 (CA) at 193.
77 CD v Immigration and Protection Tribunal, above n 75, at [23]; and Hai v Minister of Immigration, above n 60, at [25].
defective inquiry that would require this Court to refer to further evidence. She also submits that the affidavits raise credibility concerns in that they contradict earlier statutory declarations.
[49] I accept Ms McCoy’s submission that the applicants could have placed the material before the Tribunal in the first instance, particularly in response to its request for further evidence. However, the leave application and the proposed appeal raise issues concerning how the interests of the son might be affected by the deportation of his parents.78 I accept Mr Carey’s submission that the interests of affected children are of particular significance in this context, and that it is in the interests of justice to consider relevant evidence. I therefore grant leave for it to be adduced in support of this application.
Discussion
[50] I remind myself that these are applications for leave. The issue for now is whether it is seriously arguable that the Tribunal erred, not whether it actually did so. If it is seriously arguable that the Tribunal erred, I must determine whether the tests for leave are met. For the reasons set out below, I have decided to grant leave to appeal but not to commence judicial review proceedings. I have dealt with everything necessary to determine those two issues. The question for appeal is set out at [63] below. Some of the matters raised in counsel’s detailed and helpful submissions are better left for the court hearing the substantive appeal.
Appeal
[51] As noted above, the Tribunal found that it is in the son’s interests to remain in New Zealand and that it would be unjust and unduly harsh to deport him. In assessing whether it would also be unjust or unduly harsh to deport his parents, the Tribunal was required to focus on their personal circumstances and those of their son.79 The Tribunal found that the most significant consideration and consequence of deportation is the potential for separation of the son from his parents, and concluded that separation
78 Hai v Minister of Immigration, above n 60, at [30].
79 Guo v Minister of Immigration, above n 47, at [9].
would be harsh but not unduly harsh.80 In any event, the Tribunal found it is for the husband and wife as a family to manage arrangements to give effect to the son’s best interests. 81
[52] In practical terms, the Tribunal’s decision requires the family to elect between two alternatives. The teenage son can move to Thailand despite it being in his best interests not to, or he can stay New Zealand without his parents.
[53] I accept Mr Carey’s submission that it is seriously arguable that the Tribunal erred in law by concluding that it would not be unjust or unduly harsh to deport the applicants. The Tribunal was required to consider the best interests of the son, as both an immediate family member82 and a child to whom the protections of the UNCRC and ICCPR apply. It was required to carefully identify the interests of the son and the consequences of disappointing those interests. These interests are to be genuinely assessed. I accept Mr Carey’s submission that it is seriously arguable that the Tribunal erred in this regard when determining when it would be unjust or unduly harsh to deport the applicants.
[54] I also accept Mr Carey’s submission that the Tribunal erred by speculating that alternative guardianship arrangements might be made for the applicants’ son, either with the daughter or with others. The daughter is a 20-year-old university student with student loans who is herself dependent to some extent on the applicants.83 In any event, it is seriously arguable that by speculating about these matters, the Tribunal failed to genuinely investigate the consequences of disappointment of the son’s interests.
[55] Finally, I am also satisfied it is seriously arguable that the Tribunal erred in taking into account the husband’s conviction when assessing whether it would be unjust or unduly harsh to deport the wife.84
80 Decision, above n 2, at [85].
81 At [87].
82 Guo v Minister of Immigration, above n 47, at [9].
83 At [86].
84 At [74].
[56] Ms McCoy submits that a finding as to a high level of hardship for the son, if his parents were deported, would not itself justify the conclusion that their deportation was unjust or unduly harsh.85 She says that the Tribunal’s decisions in relation to the son are not so unsupportable or clearly untenable that the proper application of the law requires different conclusions.86 Counsel will no doubt expand on those submissions at the hearing of the substantive appeal. However, as set out above, I consider that Mr Carey’s submissions to the contrary are seriously arguable; and that the Tribunal did not genuinely consider the son’s interests and the consequences of their disappointment.
[57] Mr Carey also submits that the Tribunal erred in relation to the interests of the applicants’ daughter. I do not consider that is seriously arguable. She is not a child. She is 20 years old and a dual citizen of New Zealand and Thailand. Her circumstances are not as acute as her brother’s, and she is at liberty to decide whether to remain in New Zealand or return with her parents. Had it not been for the interests and circumstances of the applicants’ son, I would not have granted leave to appeal.
[58] As for s 207(1)(b), the public interest limb, the Tribunal found that because it would not be unjust or unduly harsh to deport the applicants, it was unnecessary to go on to consider whether it would be in the public interest for them to remain in New Zealand. But “for completeness”, the Tribunal set out the various reasons why it was “not satisfied that it would not be contrary to the public interest to allow [the applicants] to remain in New Zealand”.87
[59] If the applicants establish on appeal that their deportation would be unjust or unduly harsh, the Tribunal’s “public interest” analysis will need to be revisited on that basis. In that case, it will be for the appeal court to decide whether to remit the matter to the Tribunal, or to make any other orders.88
[60] In terms of s 245(3), I consider that the questions of law involved in the appeal give rise to matters of general or public importance. The case concerns the rights and
85 Guo v Minister of Immigration, above n 47, at [12].
86 Bryson v Three Foot Six Ltd, above n 65, at [26].
87 At [95] – [113].
88 Immigration Act, s 245(4).
interests of a teenage child who has lived in New Zealand his entire life but whose parents have not been living or working here lawfully. New Zealand’s international obligations are in issue. It is appropriate for these issues to be properly ventilated in a substantive appeal.
Judicial Review
[61] Having determined to grant leave to appeal, the application for leave for a judicial review can be dealt with shortly. It is declined. The proposed judicial review would focus essentially on whether the Tribunal had properly considered the son’s interests when deciding to deport his parents. These issues can be dealt with on appeal.
[62] I do not accept Mr Carey’s submission that judicial review is also required to determine whether the Tribunal’s decision was unreasonable or was inconsistent with earlier decisions. Ms McCoy correctly points out that cases in the immigration context are highly fact-specific,89 and whilst the principal of consistency may require like cases to be treated alike, it does not require the same outcome.90 The Tribunal referred to the Supreme Court’s decisions in Ye v Minister of Immigration and Guo v Minister of Immigration in assessing s 207(1)(a), and Garate v Chief Executive of Department of Labour91 and Helu v Immigration and Protection Tribunal in assessing s 207(1)(b). Whether or not the Tribunal was correct in its assessment can be adequately considered on appeal.
Result
[63] The application for leave to appeal pursuant to s 245 of the Act is granted. The application for leave to issue judicial review proceedings pursuant to s 249 of the Act is dismissed.
[64] It is important for the scope of the appeal to be properly defined. I grant leave to appeal in relation to the following questions:
89 DY (Pakistan) v Refugee and Protection Officer [2021] NZCA 522 at [27].
90 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2954 at [63] – [64].
91 Garate v Chief Executive of Department of Labour HC Auckland CIV-2004-404-1440, 30 November 2004.
(a)In circumstances where the Tribunal determined that it is in the best interests of the son to remain in New Zealand, and that it would be unjust and unduly harsh to deport him, did the Tribunal err in law in determining that:
(i)it would not be unjust or unduly harsh to deport both the applicants; and
(ii)it was not satisfied that it would not be contrary to the public interest to allow the applicants to remain in New Zealand.
(b)If the answer to (a) above is “yes”, whether the proceeding be referred back to the Tribunal for rehearing.
Costs
[65] If costs are sought and cannot be agreed, memoranda (no longer than three pages in length) are to be filed within 15 working days of the date of this judgment. I will determine costs on the papers.
Robinson J
0
15
1