Chai v Minister of Immigration
[2023] NZHC 2536
•11 September 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-000989
[2023] NZHC 2536
UNDER section 245 of the Immigration Act 2009 IN THE MATTER
of an application for leave to appeal against a decision of the Immigration and Protection Tribunal
BETWEEN
HOOI KEAT CHAI
Applicant
AND
THE MINISTER OF IMMIGRATION
Respondent
Hearing: 30 August 2023 Appearances:
D J Ryken for Applicant
N N A El-Sanjak & A W M Britton for Respondent
Judgment:
11 September 2023
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 11 September 2023 at 3pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Ryken & Associates, Auckland Crown Law Office, Wellington
CHAI v MINISTER OF IMMIGRATION [2023] NZHC 2536 [11 September 2023]
[1] Hooi Keat Chai is a Malaysian citizen, resident in New Zealand. In October 2018, Mr Chai was convicted of offences against the Immigration Act 1987, including that:
(a)in his work visa application of February 2009, he made a false and misleading statement that he worked for an employer in Malaysia from October 2003 to June 2005, when in truth he was living in New Zealand under the name Kok Tong Chai; and
(b)when entering New Zealand in August 2009, January 2010 and May 2010 he presented the work visa he had obtained in the manner outlined above, knowing it had been obtained fraudulently.
[2]These convictions rendered him liable for deportation.1
[3] In June 2022, Mr Chai was served with a deportation liability notice. He appealed against that liability to the Immigration and Protection Tribunal (the Tribunal). On 13 April 2023, the Tribunal declined Mr Chai’s appeal (the Decision).2
[4] In this proceeding, Mr Chai seeks leave under s 245(1) of the Immigration Act 2009 (the Act) to appeal the Tribunal’s decision on the basis it made an error of law. He submits with reference to s 245(3) that this error involves a question of general or public importance which, for that or another reason, should be submitted to the High Court for its decision.
Background
[5] Mr Chai is around 40 years old. Having lived in Malaysia until he was 19, he arrived in New Zealand in 2003 on a visitor visa under the name “Kok Tong Chai”. When a further visitor visa expired in April 2004, Mr Chai stayed unlawfully in New Zealand until departing in June 2005.
1 Immigration Act 2009, ss 158(1)(a)(ii) and 161(1)(a)(ii).
2 Chai v The Minister of Immigration [2023] NZIPT 600727.
[6] In October 2005, back in Malaysia, Mr Chai changed his name to Hooi Keat Chai. In November 2005, he entered New Zealand under his new name, failing to disclose his previous name. In making the fraudulent work visa application of February 2009 referred to above, Mr Chai again failed to disclose his previous name and, as stated, he made false and misleading statements that he worked for an employer in Malaysia from October 2003 to June 2005, in that manner concealing his previous unlawful stay in New Zealand under the name Kok Tong Chai.
[7] In June 2012, Mr Chai was granted New Zealand residence. In late 2012, Mr Chai married his wife, a citizen of Malaysia, in ceremonies in both Malaysia and New Zealand. Mr Chai’s wife is now a New Zealand resident. The couple have two children born in New Zealand, a daughter in November 2014 and a son in December 2018. The children are New Zealand citizens.
The Tribunal’s decision
[8] The Tribunal was required to deal with Mr Chai’s appeal against his liability for deportation in accordance with s 207 of the Act. Section 207 relevantly provides:
207 Grounds for determining humanitarian appeal
(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.
[9] The Tribunal determined the matter with reference to s 207(1)(a), identifying exceptional humanitarian circumstances, but finding that they would not make it unjust or unduly harsh for him to be deported from New Zealand. The Tribunal’s essential reasoning was:
[91] If the appellant is deported, it appears that the most likely outcome is that he would return to Malaysia alone. There will be a significant burden on Ms Toe to continue her restaurant business without the appellant’s support to care for their children. It will be difficult to finance physical contact with the appellant in Malaysia. If Ms Toe and children return to Malaysia, there are potential difficulties for the children to acquire citizenship and to live there
without citizenship. It is in the best interests of the children for the appellant to remain in New Zealand.
[92] However, the Tribunal is satisfied that allowing the appellant’s appeal would seriously undermine the integrity of the immigration system. Immigration New Zealand depends on applicants to provide reliable and accurate information in applications for visas. It was a serious matter that the appellant was granted a temporary work visa based on his concealment of his previous identity. This fraud led to him obtaining a resident visa, to Ms Toe obtaining a resident visa based on her partnership with him and the children acquiring New Zealand citizenship on their births here.
[93] Weighing the offending (immigration offences involving dishonesty) against the exceptional humanitarian circumstances (primarily, the effect of deportation on Ms Toe and the children), the Tribunal is satisfied that it is not unjust or unduly harsh for the appellant to be deported from New Zealand.
Applications for leave to appeal
[10]Section 245 of the Act relevantly provides:
245 Appeal to High Court on point of law by leave
(1)Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
…
(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
(Emphasis added).
[11] The practical application of s 245 requires that applicants identify a seriously arguable question of law which either:
(a)has importance extending beyond the particular case (and thus has general or public importance for the purposes of s 245(3)); or
(b)for some other reason, warrants a decision from the High Court.3
[12] The latter, “any other reason” limb requires “an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing”.4
[13] The issues raised need to go beyond the particular circumstances of the applicant, or suggest the existing law needs revisiting.5 The following generally do not qualify:
(a)misapplication of existing legal principles to the particular facts of a case;6
(b)poor prospects of success;7 and
(c)errors that were not material to the outcome.8
Submissions for Mr Chai
[14] For Mr Chai, Mr Ryken submitted that the Tribunal’s reasoning suggested it was applying a ‘rule of thumb’; that is, a rule that deportation is not generally unjust or unduly harsh where immigration offending has given rise to liability to deportation, because the integrity of the immigration system typically overcomes exceptional circumstances of a humanitarian nature. The application of such a rule would be wrong.
[15] Mr Ryken contrasted such reasoning with Supreme Court guidance to the effect that examination whether deportation is “unjust or unduly harsh” in terms of
3 Singh (Shivdev) v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 972, [2018] NZAR 1120 at [24].
4 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
5 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32].
6 JW v Chief Executive of the Ministry of Business, Innovation and Employment [2022] NZCA 286 at [19].
7 See Allada v Immigration and Protection Tribunal [2014] NZHC 953 at [36].
8 See, for example, Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [16].
s 207(1)(a) requires assessment of the particular reasons why deportation liability has arisen.9 In cases where criminal offending gives rise to deportation liability, the nature of the offending requires consideration so as to determine whether deportation would be unjust or unduly harsh, and:10
This requires the Tribunal to assess the gravity of the particular offending and its effects, not merely the kind of offence involved. The Tribunal must assess the degree of an appellant’s culpability in all the circumstances.
[16] Mr Ryken recognised that in cases such as Huang v Minister of Immigration the balancing required under s 207(1)(a) has been found inherently to involve assessment of the level of harshness that is acceptable in order to preserve the integrity of the immigration system.11 However, he submitted that the culpability of the offending that founded the deportation liability in that case, where drug offending was punished by seven years’ imprisonment, was quite different to that in the present case, where Mr Chai’s offending was punished by six months’ home detention. In cases involving very serious offending, the need to ensure public interest factors relevant to s 207(1)(b) are considered distinctly under that limb of s 207, and do not come to dominate the balancing exercise under s 207(1)(a), is not as acute. Allowing the nature of immigration-related offending to dominate the balancing exercise under s 207(1)(a) compromises the overall decision-making process under s 207.
Submissions for Minister of Immigration
[17] For the Minister of Immigration, Ms El-Sanjak submitted the Tribunal made no seriously arguable error of law, and that its decision was simply the consequence of its application of what it regarded as the relative weighting of the nature and seriousness of Mr Chai’s offending as against the humanitarian circumstances the Tribunal found to exist. On that basis, no questions of law of general or public importance arise.
9 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].
10 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [162].
11 Huang v Minister of Immigration [2020] NZHC 956 at [36].
Decision
[18] I accept Mr Ryken’s submission that application by the Tribunal of his ‘rule of thumb’ would raise a question of law that should be submitted to this Court for its decision. The cases he draws in aid make it plain that s 207(1)(a) requires case-specific weighing of such exceptional humanitarian circumstances as are found to exist against the individual circumstances giving rise to deportation liability.12 It is at least arguably wrong (so as to require leave to appeal being granted), if not clearly wrong, for immigration offending as a basis for deportation liability to be treated as presumptively justifying deportation notwithstanding exceptional humanitarian circumstances. Immigration offending may generally tend to undermine the integrity of the immigration system, but the extent to which the offending in any particular case actually had that tendency derives from the nature of the offending and the offender’s culpability in each case. If the general tendency of immigration offending to undermine systematic integrity is seen as of itself justifying the injustice or undue harshness of deportation, the weighing process is compromised.
[19] Accordingly, determination of this application for leave requires assessment of whether the Tribunal did apply the alleged ‘rule of thumb’ or presumption.
[20] Here, it should be observed that the Tribunal’s essential reasoning cited at [9] above appeared under the sub-heading “Conclusion on unjust or unduly harsh to deport”, towards the end of a lengthy section of the Tribunal’s decision headed “Assessment”. Initial sub-parts of the assessment dealt with the question whether exceptional humanitarian circumstances were at stake.13 The Tribunal having identified such circumstances, it turned to consider “Whether it would be Unjust or Unduly Harsh for the Appellant to be Deported”. The particular circumstances of Mr Chai’s offending were then discussed.14 The discussion included reference to Mr Chai’s suggestion his offending was instigated by a dishonest immigration adviser, and facts that contradicted that suggestion, including that the District Court Judge who sentenced Mr Chai found the offending to involve some premeditation and planning.
12 Guo v Minister of Immigration, above n 9, at [9]; and Helu v Immigration and Protection Tribunal,
above n 10, at [162].
13 At [61]–[80].
14 At [82]–[83].
[21] Mr Ryken submitted that the offending in Mr Chai’s case could be contrasted with, and seen as less serious than, offending where immigration applications are false because the applicant does not have certain qualifications or experience that are necessary for the type of application being pursued. However, the inaccuracies within Mr Chai’s various applications concealed that he had remained unlawfully in New Zealand for a period of around 14 months following the expiry of a visitor visa in 2004. It is likely that aspect of Mr Chai’s background would, if known, have been viewed as an equally relevant feature of his applications.
[22] Thus, it is apparent that assessment of Mr Chai’s particular offending informed the Tribunal’s later observation,15 that “the integrity of the immigration system is seriously undermined if applicants conceal identities which would have made them ineligible to apply for temporary and resident visas”.
[23] Coming now to the Tribunal’s ultimate reasoning at [9] above, it can be seen that:
(a)Paragraph [91] summarises the exceptional humanitarian circumstances at play.
(b)Paragraph [92] commences with a conclusory statement that “… the Tribunal is satisfied that allowing the appellant’s appeal would seriously undermine the integrity of the immigration system”. However, the Tribunal moves immediately to explain how that consequence would arise in the particular circumstances of Mr Chai’s case, referring to the inaccuracy of his temporary work visa application leading to the acquisition of his residence visa, and then to his wife’s residence visa and his children’s citizenship.
(c)Paragraph [93] refers to the required exercise — that of weighing the reason for deportation liability (here, the offending) against the exceptional humanitarian circumstances — and sets out the Tribunal’s view of where the weighing exercise landed.
15 At [88].
[24] On this analysis, the Tribunal’s reasoning does not support the proposition that it applied a ‘rule of thumb’ or presumption to the effect that immigration offending as a basis for deportation liability overcomes exceptional humanitarian circumstances. Instead, the reference to the serious undermining of the integrity of the immigration system was made for the purpose of summarising or characterising the significance of the “particular reasons why deportation liability has arisen”. The Tribunal’s view was simply that Mr Chai’s offending outweighed the exceptional humanitarian circumstances of his case.
[25] Further, in my view, that assessment was not plainly wrong, such that an individual injustice the Court could not countenance has arisen.16
[26] On this basis, the proposed appeal does not raise a question of law that by reason of its general or public importance, or for any reason, should be submitted to the High Court for its decision. I decline to grant leave to appeal.
Result
[27]Mr Chai’s application for leave to appeal is declined.
Costs
[28] Mr Chai is to pay the respondent’s costs, to be assessed on a 2B scale basis by the Registrar.
Johnstone J
16 Machida v Chief Executive of Immigration New Zealand, above n 4, at [8].
6
1