Dong (HA (China)) v Minister of Immigration
[2023] NZHC 2176
•15 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-2346
[2023] NZHC 2176
UNDER the Immigration Act 2009 and r 20.3 of the High Court Rules 2016 IN THE MATTER
of an application for leave to appeal under s 245 of the Immigration Act 2009
BETWEEN
HAOMIN DONG published as HA (China) Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing: 25 May 2023 Appearances:
J Walker and Ms Fraser for the Applicant
S Jensen and N El-Sanjak for the Respondent
Judgment:
15 August 2023
JUDGMENT OF BECROFT J
This judgment was delivered by me on 15 August 2023 at 10.30am pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors/Counsel: Crown Law, Wellington
J Walker, Hamilton
DONG v MINISTER OF IMMIGRATION [2023] NZHC 2176 [15 August 2023]
What this case is about
[1] Mr Haomin Dong is a 70-year-old citizen of China. He came to New Zealand in 2007 with his then-wife on a temporary visa. They came to be with their daughter (their only child) and her husband and family. Mr Dong became a New Zealand resident in 2013. He and his wife were granted residence because their daughter had been granted residence earlier.
[2] In late 2017 he had seasonal employment in the horticultural industry at an orchard. He lived in a nearby flat with his wife and several other Chinese nationals.
[3] One afternoon, an argument broke out with another female tenant. Mr Dong, holding a small knife he had been peeling garlic with in one hand, and a spanner in the other, struck out at the female tenant and stabbed her in the arm. She bled profusely, required surgery and was off work for six months while she recovered.
[4] Mr Dong was charged with wounding with intent to cause grievous bodily harm. He was found guilty by a jury despite his then, and continuing, protestations of innocence. He says the incident was accidental. He was sentenced to three years’, two months’ imprisonment.
[5] As a result, he and his wife separated. They are now divorced. He does not know where she lives but believes she is still in New Zealand. Meanwhile, their daughter and her New Zealand husband, who have two sons, have been living in China since 2012. It is said they intend to return to New Zealand permanently next year.
[6] Because of his conviction, the appellant became liable for deportation under s 161(1)(b) of the Immigration Act 2009 (the Act). On 21 September 2021 a deportation liability notice was signed in respect of the appellant.
[7] Mr Dong filed an appeal on humanitarian grounds against his deportation liability on 19 October 2021. He pointed to his early-stage dementia and, at his age, the likely significant difficulties with his care in China. On 7 November 2022, the
Immigration and Protection Tribunal (IPT) dismissed his appeal.1 That is the decision Mr Dong now seeks leave to appeal. The issue is whether such leave should be granted.
The Tribunal decision
[8] The Tribunal’s assessment of Mr Dong’s circumstances – his dementia and the difficulties he would face if deported to China – is at the heart of this application. It is important to set out the Tribunal’s reasoning in some detail.
[9] Judge Treadwell, the Chair of the Tribunal, correctly set out the law.2 Under s 207(1) of the Act:3
(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.
[10] The Tribunal referred to Ye v Minister of Immigration, where the majority of the Supreme Court, in respect of the earlier analogous section, framed the s 207(1)(a) test as requiring three ingredients:4
(a)exceptional circumstances;
(b)of a humanitarian nature; and
(c)that would make it unjust or unduly harsh for the person to be removed from New Zealand.
1 HA (China) v Minister of Immigration [2022] NZIPT 600706 [Tribunal Decision].
2 At [42].
3 Emphasis added.
4 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
[11] The Supreme Court held that for circumstances to be exceptional “means that those circumstances must be well outside the normal run of circumstances…”. In other words, they “[did] not have to be unique or very rare but they [did] have to be truly an exception rather than the rule.”5
[12] The Tribunal observed that family interests were also relevant to the present case, and that therefore “regard must be had to the entitlement of the family to protection as the fundamental group unit of society…”.6
[13] The Tribunal summarised the evidence presented by and on behalf of Mr Dong as follows.
[14] Mr Dong was born in 1952, in China. He married in about 1980. He and his wife had one child, a daughter, Ms Harris, who came to New Zealand to study in about 2001. She later married a New Zealand citizen, and they have two sons. She visited her parents in China in most years from 2001 to 2013. Mr Dong and his wife, who were getting older and who wanted to be with their daughter and their grandchildren, would sometimes visit New Zealand.
[15] The facts set out in the decision as to the timings are a little confusing. Suffice to say it seems that in May 2013 he and his wife were granted residence. Meanwhile, it is said that in 2012 Mr Dong’s daughter returned to China with her family so that they could learn more about Chinese culture.
[16] Mr Dong explained his innocence in respect of the grievous bodily harm charge, believing there had been a miscarriage of justice because the New Zealand Police did not understand Chinese culture. He confirmed his subsequent divorce.
[17] Since his release from prison, he had been working in the horticultural industry, supported by a Chinese friend. Mr Dong pointed out he was now 70 “and suffers from epilepsy, dementia, diabetes, cataracts, prostate and other afflictions.”7
5 At [34]; cited in the Tribunal Decision at [60].
6 Tribunal Decision at [44].
7 At [19].
[18] The evidence of his daughter was that she and her husband returned to China in 2012 after selling their house in New Zealand. She and her husband now taught English as a second language. They had planned to return to New Zealand in February 2022, but the “serious Covid-19 situation” caused a postponement until 2024. New Zealand was still where she and her family wished to live permanently. For this reason, she explained that Mr Dong, if deported, would “…face the prospect of living alone in China with no family to help him as he gets older.” Given the Chinese cultural expectation that children would look after their elderly parents “this thought is heart- breaking.”
[19] Mr Dong’s daughter has considered whether she could stay in China if her father were deported but said this would be difficult for her. The Tribunal noted that “[s]he and the children are New Zealand citizens and they see this as their home country.”8 Further, “[s]he would stay long enough to see her father settled but she does not think she could stay permanently.”9
[20] The Tribunal also summarised the evidence of Barry Kirker, a registered clinical psychologist retained by Mr Dong. His report was not available at the time of the hearing. Counsel filed further submissions about it when it was received.
[21] Mr Kirker had regard to earlier medical reports, which assessed Mr Dong as suffering from “probable (mixed) dementia”. In administering his own tests he found Mr Dong to be “wilful and malingering, unrelated to any dementia.”10
[22] In summary, the Tribunal noted that “Mr Kirker found … [Mr Dong] has had early stage dementia for some years but, at this stage, it is not as bad as he seeks to portray. Mr Kirker found [Mr Dong] to be exaggerating the extent of his cognitive and related impairments.”11 Mr Kirker found that Mr Dong had suffered some personality changes in recent years, particularly becoming more aggressive in some interpersonal situations. He concluded that as dementia was a degenerative condition,
8 At [22].
9 At [22].
10 At [26].
11 At [30].
meaning Mr Dong’s condition was likely to decline over time, Mr Dong should be reassessed annually or at least biennially.
[23] The Tribunal also referred to the notes of a specialist geriatrician from Waikato Hospital, Dr Liao. He concluded in his March 2022 report that Mr Dong’s neurological examination was “unremarkable” and that in summary Mr Dong had “probable early mixed dementia”.
[24] The Tribunal noted the considerable documentation and submissions filed on behalf of Mr Dong.12 Those documents included a further statement as to Mr Dong’s financial position, and a bundle of country information in relation to dementia care in China (which care, counsel submitted, was relatively poor and inadequate).
[25] The Tribunal summarised the submissions on behalf of Mr Dong, which counsel said amounted to “exceptional humanitarian circumstances” when viewed cumulatively:13
(a)Deportation would have a devasting effect on Mr Dong; as well as on his daughter, who would be returning permanently to New Zealand, could not remain in China to provide long-term care and instead could only help settle Mr Dong in.
(b)Mr Dong would not be able to find work in China due to his age, nor should he be expected to.
(c)There was a cultural expectation that children would look after their parents, and Mr Dong had no one except his daughter to look after him.
(d)Mr Dong is suffering early onset dementia, which would worsen over time and his care needs would increase. Without family care, and without any state-supported care facilities, Mr Dong’s minimal financial means were such that he faced “a very perilous future” if deported.
12 At [34] – [36].
13 At [37].
(e)His daughter would also be devastated if Mr Dong were deported.
[26] Balancing these exceptional humanitarian factors against Mr Dong’s offending, counsel submitted deportation would be “unjust or unduly harsh”. Further, given reoffending risks “appeared low”, and having regard to the need for family unity and the appellant’s age, it would not be “contrary to the public interest” for Mr Dong to remain in New Zealand.
[27] The Tribunal then recorded the submissions for the Minister in response. In essence:
Exceptional humanitarian circumstances
(a)Despite living in China since 2012, Mr Dong’s daughter had remained in touch with him, speaking once or twice each week via social media and video call.
(b)While she stated that she and her family intended to return to New Zealand, probably the next year, she acknowledged she would stay in China to help her father settle there should she need to do so before returning to New Zealand.
(c)Family separation was not unusual in the migration context. Mr Dong’s daughter and her family would be able to visit Mr Dong if he were deported to China, and would be able to maintain contact by electronic means.
(d)As to Mr Dong’s health, while he had been diagnosed as having early mixed dementia, geriatrician Dr Liao described his condition as “unremarkable”, and Mr Kirker found that the dementia did not appear to be as serious as Mr Dong sought to portray.
(e)The Minister accepted dementia was a degenerative condition that would see Mr Dong’s cognitive capacity decline over time; that Mr Dong’s daughter considered she would be unable to afford a private
care facility for her father; and that his own pension would be insufficient.
(f)The Minister also accepted that Mr Dong’s dementia might impact upon his ability to reintegrate into Chinese society. However, Mr Dong had not been living away from China for a long period and would remain familiar with life and customs there. Moreover, his daughter would be present to assist him to resettle.
Injustice or undue harshness
(g)The Minister was of the view there were no exceptional humanitarian circumstances but that, even if there were, deportation would not be unjust or unduly harsh given the gravity of Mr Dong’s offending. The sentence of three years’ and two months’ imprisonment rightly reflected the seriousness of the offence.
Public interest
(h)Even acknowledging the public interest in family unity, Mr Dong had no family in New Zealand and, as noted by Dr Liao, little social support. Disruption to family unity could be moderated by electronic contacts and visits, if and when Mr Dong’s daughter returned to New Zealand.
(i)The Minister considered Mr Kirker’s finding that the risk of Mr Dong reoffending appeared to be low was made only on static risk factors and was therefore unconvincing. In contrast, the Probation Service’s pre- sentence report assessed Mr Dong at a high risk of reoffending.
(j)In the eyes of reasonable members of the public, the integrity of the immigration system would be undermined if the appellant were to remain in New Zealand.
[28] In light of these submissions, the Tribunal then moved to assess whether there were exceptional circumstances of a humanitarian nature. It made its assessment in four parts. Below, I summarise the first three – family unity, Mr Dong’s ability to
support himself in China and his nexus to New Zealand. The fourth – Mr Dong’s claimed innocence – needs no further summary in this judgement.
Family unity
[29] The Tribunal reiterated that the daughter and her family had been living in China since 2012, and there was no clear evidence of a date or any concrete plans for their return to New Zealand. The Tribunal noted that any future return was “a matter of choice for them”.14 It emphasised that it was clear they “could remain in China, should they elect to do so. If caring for [Mr Dong] is important to [his daughter], it is clearly an option for her even if it is not the one she would opt for, if given the choice.
However, it remains an option.”15
[30] The Tribunal accepted it was a custom in China that children would care for their parents in old age, but it was not an imperative. For instance, Mr Dong’s daughter had not returned to New Zealand to care for him even though he had been out of prison for three years and was living without any family support. And even if she elected to return to New Zealand, it was clear she and her family could remain in contact with her father by electronic means and by visits, as they had been doing for a long time.
Mr Dong’s ability to support himself in China
[31] The Tribunal noted Mr Dong’s dementia was not as bad as he sought to portray, and that “he exaggerate[d] the symptoms to suit his purposes.”16 The evidence did not indicate he currently needed the level of care of a residential facility. He lived independently in New Zealand in a rented property with other boarders and cooked for himself.
[32] While dementia was accepted as being degenerative, “there [was] no evidence as to the timeframe over which the appellant’s ‘early stage’ dementia might develop, the pathway that it might take or the range or degree of disability that the appellant might suffer. He [might] remain as he is for some, or many, years”.17
14 At [47].
15 At [47].
16 At [50].
17 At [51].
[33] Even if Mr Dong’s dementia were to worsen to the point he needed residential care, the Tribunal considered there was at that point too little information as to what level of care he might need. He might need limited assistance with issues of forgetfulness such as cooking and personal hygiene, or he might degenerate to the point he is uncooperative, difficult to manage and required fulltime care. Neither Dr Liao nor Mr Kirker had provided any guidance as to what might be needed and when, and nor could this be expected of them.18
[34] The Tribunal accepted that the available country information pointed to a shortage of residential care facilities in China; but it again emphasised that it was not known whether Mr Dong would need such care or when. On this point, the Tribunal concluded the uncertainty of the future meant it had to take Mr Dong “as it [found] him”.19 He was able to live independently, though a degree of support in terms of cooking assistance would help him. The Tribunal noted his daughter could provide that support, either by remaining in China or, if she elected to return to New Zealand with her family, by arranging assistance.
Nexus to New Zealand
[35] While Mr Dong and his wife had come to New Zealand to be with or near their daughter – as an expression of familial ties – those ties no longer persisted in the same way. Mr Dong and his wife had been separated for some years, and their daughter had lived in China for the past decade. While Mr Dong had adjusted to life in New Zealand, there was clear evidence he had maintained contact with Chinese culture and language. The Tribunal also noted he still had limited English and required an interpreter for the hearing.
[36] The Tribunal accepted Mr Dong would be sad and distressed to leave New Zealand after 15 years, and that there would be a period of resettlement into China (albeit during which his daughter confirmed she would assist him).
18 At [52].
19 At [54].
Conclusion as to exceptional circumstances of a humanitarian nature
[37] The Tribunal concluded it was satisfied there were no exceptional circumstances of a humanitarian nature in Mr Dong’s case. His daughter would need to make decisions as to how she would provide the support to him that she said she wished to provide; but, those were choices for her to make.20
[38] Given that the appeal failed at this first stage of the test, the Tribunal observed it was unnecessary to embark on further consideration as to the “unjust or unduly harsh” or “public interest” stages of the inquiry.21
[39] It is worth noting that the Tribunal did make an order removing the period of prohibition on re-entry. That would allow Mr Dong the opportunity to return to New Zealand to visit his daughter in the future.22 It clarified that “[o]bviously, the grant of any such visa [enabling him to do so would] be a matter for Immigration New Zealand.”23
This Court’s limited appellate jurisdiction
[40] The appeal and the present application for leave are governed by s 245 of the Act, which 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.
…
20 At [61].
21 At [62].
22 At [64] – [67].
23 At [65].
[41] It is now well accepted that the leave provision indicates Parliament’s intent to limit appeals of immigration decisions.
[42] Counsel agree that the present case is based wholly upon criticisms of the Tribunal’s factual findings. As Kós J observed in Taafi v Minister of Immigration the applicant therefore faces a triple hurdle:24
(a)First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court’s finding.
(b)Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
(i) the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and
(ii) the errors of fact are so significant and extensive that a properly- directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.
(c)Thirdly, the applicant must show that the question of law (here based on alleged fundamental errors of fact) is one of general or public importance, or for some other reason ought to be considered on appeal. The former is a hard ask in the case of factual errors, no matter how profound. (Here, the applicant does not seek to argue that the questions he presents meet the requirement of being of general or public importance. Thus he relies on the alternative limb that there is “other reason” why the question should be submitted to the High Court). In my view it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.
[43] Ms Walker, assisted by Ms Fraser for the applicant, immediately conceded that the applicant had a high hurdle to jump. She properly accepted that leave applications of this nature can only proceed based on errors of law. In this case, where factual errors are central, Ms Walker accepted the earlier comments by Wild J in Mohamud v Minister of Immigration, under different precursor legislation and in a slightly different context, where the Judge observed:25
24 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19] (footnotes omitted).
25 Mohamud v Minister of Immigration HC Wellington AP21/98, 5 October 1998 at 5.
Error of law
… Under the label “question of law” a limited incursion is now permitted into the factual area where either the Tribunal has:
1.Come to a conclusion without any evidence or upon evidence which could not reasonably support its conclusion, or
2.Failed to draw from unchallenged primary facts an inference favourable to the appellant, when such inference is the only one reasonably open.
What the Court may not do under guise of a question of law is concern itself with whether the Tribunal was right or wrong in its conclusion i.e. with the merits of the case. Further, the weight to be given to the assessment of relevant considerations is for the Tribunal alone and not for consideration by the Court as a point of law.
Applicant’s arguments summarised
[44] Undaunted by the high legal test, Ms Walker candidly pinned her persuasively presented case on three central arguments. These three areas of particular concern developed during argument. All are under the general heading that the Tribunal erred in law by deciding there were no exceptional circumstances of a humanitarian nature. Ms Walker immediately accepted that the Tribunal articulated the correct legal test but was adamant that the test was misapplied. Her three central concerns in summary are:
(a)The Tribunal erred by failing to take into account that dementia is an irreversible degenerative process. Also, the Tribunal understated both Mr Dong’s current condition and how seriously he may come to be debilitated by dementia.
(b)The Tribunal failed to properly consider the near certain lack of proper care for Mr Dong in China. Ms Walker acknowledged this argument is largely caught up in the first argument.
(c)The Tribunal misunderstood the evidence from Mr Dong’s daughter to the effect that her family had planned to return to New Zealand in February 2022 but the “serious Covid-19 situation” forced postponement until 2023. Her unchallenged evidence was that New Zealand was the place in which they intended to have their long-term home, especially as her husband and two children are New Zealand citizens and they see this as their home country. The Tribunal thus erred
in suggesting or even assuming one of the available options was for her to permanently remain in China to care for her father.
[45]I deal with each of these arguments in turn.
First argument – failed to sufficiently consider dementia as an ongoing degenerative condition
[46] The gravamen of Ms Walker’s argument is centred around the Tribunal’s comment at para [54] that “[t]he uncertainty of the future means that the Tribunal must take [Mr Dong] as it finds him”. Taken on its face, that statement troubles Ms Walker greatly. In her view it fails to appreciate, or at least under-estimates, the inevitable degenerative progression of dementia. The Tribunal cannot freeze Mr Dong’s condition in the present. In Ms Walker’s view, if the Tribunal were to truly take Mr Dong’s condition as the Tribunal found it – that must be to admit a serious and inexorable, degenerative process is at work. Ms Walker’s argument was really that this comment reveals a minimisation apparent in the Tribunal’s reasoning as to dementia. And more fundamentally, that it represents a failure to understand a key factual plank of Mr Dong’s appeal. Indeed, it is so significant and grave a factual error that it constitutes an error of law.
[47] I understand Ms Walker’s argument and have reflected carefully on it. I accept, as did Mr Jensen for the Minister, that the Tribunal’s choice of expression in this respect could have been better. But at least two things can be said.
[48] First, the Tribunal’s comment does not exist in isolation. The context of a comment is everything. Here it comes at the end of a quite detailed analysis as to Mr Dong’s condition. The Tribunal had significant information before it that Mr Dong’s dementia would worsen over time and his care needs would increase. As I have already recorded (at [20] – [23] of this judgment), the Tribunal carefully set out and analysed this evidence. The Tribunal specifically noted Mr Kirker’s conclusion that as dementia was a degenerative condition, and as Mr Dong’s condition was likely to decline over time, Mr Dong should be assessed annually or at least biennially.26
26 Tribunal Decision at [32].
Indeed, at para [51] the Tribunal specifically accepted dementia was a degenerative condition. Therefore, it simply cannot be said that the Tribunal failed to appreciate the degenerative reality of dementia.
[49] Secondly, the “take him as the Tribunal finds him” comment is not emblematic of the Tribunal’s failure to take into account Mr Dong’s future needs. In my view the Tribunal carefully grappled with this very issue. The Tribunal was faced with a difficult factual situation. On the one hand there was an accepted dementia diagnosis. But on the other hand, such evidence as was presented for Mr Dong showed a distinct lack of clarity about the timeframe over which the applicant’s dementia might develop, the pathway that it might take or the range or degree of disability the applicant might suffer. As the Tribunal observed, “[h]e may remain as he is for some, or many, years.”27
[50] The Tribunal also noted there was too little information at that time to know what level of care he might need in the future; that he had been living independently in New Zealand; and that he lived in a rental property with other boarders and cooks for himself, though he can be forgetful and burn pots.28 Equally, it noted Mr Kirker’s observations that Mr Dong had “suffered some personality changes in recent years, in particular becoming more aggressive in certain interpersonal situations.”29
[51] The Tribunal had received country information as to the relatively unsatisfactory state care provided for dementia sufferers in China and, for Mr Dong, its prohibitive cost. But the Tribunal fairly observed that “it is not known whether [Mr Dong] will need such care or whether, at the time that he does, the family’s combined resources would be insufficient to meet the costs.”30
[52] In this way the “take him as the Tribunal finds him” approach is more easily understood. In my view the Tribunal was intending to convey that, given the real uncertainty as to the progression of Mr Dong’s dementia; the lack of specific evidence as to what course his condition might take (which evidence could not be expected from
27 At [51].
28 At [50].
29 At [31].
30 At [53].
the experts); and the level of care he might one day need; as of the time of its decision, it could not say Mr Dong’s dementia amounted a factor “well outside the normal run of circumstances” – which is the Ye test for an exceptional circumstance of a humanitarian nature.31
[53] In my view, the Tribunal was also entitled to take into account Mr Kirker’s view that Mr Dong’s dementia was not as bad as he sought to portray, and that he exaggerated the symptoms to suit his purposes. After all, Mr Kirker was the expert retained on behalf of Mr Dong. Clearly this evidence played some part in the Tribunal’s conclusion as to the uncertainty of Mr Dong’s medical future. The Tribunal was also entitled to take into account that, at the time of its decision, Mr Dong was able to live independently (though needed a small degree of support).
[54] My overall conclusion about the Tribunal’s reasoning is that dementia, including its degenerative nature, was fully and properly considered. In particular, that Mr Dong’s dementia would degenerate such that he might become uncooperative, difficult to manage and might require care. But also, that there is no clear evidence as to how long that might take and if and when it would even require fulltime residential care.
[55] I agree with Mr Jensen for the Crown, assisted by Ms El-Sanjak, that the Tribunal could not speculate as to Mr Dong’s likely prognosis. I agree that the Tribunal’s analysis of the applicant’s dementia, in the round, was perfectly available to the Tribunal on the evidence presented and that it was reasonable and demonstrates no error.
[56] Put another way, as I stand back and look at this part of the decision, the Tribunal considered all the relevant information for it. While the Tribunal may have expressed more clearly the difficulties as to Mr Dong’s future prognosis, the weight to be accorded to Mr Dong’s future prognosis is a matter for the Tribunal alone. I accept Mr Jensen’s submission that the weight the Tribunal did attribute it is not “so out of
31 Ye v Minister of Immigration, above n 4, at [34] (as set out earlier in this judgment at [11]).
kilter” that the decision is one no reasonable Tribunal could make.32 That high standard is not met here. There is no seriously arguable case that the Tribunal’s factual findings relating to dementia were incorrect or not open to it.
[57] Although Ms Wilson did not phrase it like this, I have considered whether the “take him as we find him” approach adopted by the Tribunal is, alternatively, an incorrect legal approach to the assessment. In other words, I have considered whether the Tribunal’s approach constituted a pure error of law.
[58] Once more, that might be arguable if the “take him as we find him” approach is taken by itself. But in the context of the Tribunal’s full assessment, once again it is clear that the Tribunal did look forward and did consider the degenerative nature of Mr Dong’s dementia. It simply decided to place relatively less weight on the rate of Mr Dong’s condition severely deteriorating – as it was entitled to do given the uncertainty emerging from the evidence. There is no error of law in this respect also.
Second argument – failure to properly consider the position for Mr Dong in China
[59] Ms Walker’s point here was the country information presented to the Tribunal established the near certainty that full-time residential care would be unavailable to the applicant and that he would be seriously worse off in China than in New Zealand. Without family to look after him, and without any State-supported care facilities, the applicant’s minimal financial means were such that he would face a “very perilous future” if deported.
[60] Ms Walker emphasised that the evidence regarding the much more disadvantaged situation in China included that the retirement age there is 60. Also, that there was no prospect of Mr Dong obtaining employment; that the pension was not sufficient to live on; that there was no national government funding providing for home-based or community-based dementia care services; and that it was estimated that 96 per cent of people with dementia in China were cared for at home by family members or paid caregivers.
32 LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC 2077 at [30]. See also
Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [34].
[61] I agree that relatively little emphasis was placed on this point by the Tribunal. But primarily that was because greater emphasis was not required given Mr Dong’s long-term diagnosis was so uncertain – even as to whether residential care would be needed and, if so, when – either in New Zealand or China.
[62] I fully understand Ms Walker’s concerns for her client given the spectre of his return to China. However, the uncertainty about Mr Dong’s condition made it virtually impossible, other than in a general sense, to establish he would actually be seriously worse off in China than in New Zealand - even accepting the relative inadequacies of the Chinese healthcare system for dementia sufferers.
[63] On this point, the Tribunal also fairly observed that if and when more comprehensive care were required, the family might be able to make any necessary arrangements and might have financial resources to assist.
[64] Ms Walker conceded this argument was very much linked to her first. And as with the first argument, here also there is no obvious error in the Tribunal’s approach or analysis, nor in the weight it accorded to China’s much less supportive healthcare system.
Third argument – failure to consider the daughter’s expressed intention to return to New Zealand
[65] The applicant’s daughter made clear that she had wanted to return to New Zealand with her family in 2022 but this had to be postponed until 2024 because of Covid-19. Her reasons for wanting to return to New Zealand were essentially that her husband and children were New Zealand citizens and that is where they wished to make their home.
[66] The Tribunal accurately recorded this information. It also noted that in 2012 the applicant’s daughter and her husband had sold their house, returned to China, and now had fulltime employment there.
[67] In my view it is unfortunate, in the light of this evidence, that the very first finding the Tribunal made on this aspect of Mr Dong’s case was that whether Mr Dong’s daughter and her family returned to New Zealand was “a matter of choice for them”.33 The Tribunal also said:34
While they may wish to return to New Zealand at some point in the indeterminate future, it is clear that they could remain in China, should they elect to do so. If caring for the appellant is important to the daughter, it is clearly an option for her even if it is not the one she would opt for, if given the choice. However, it remains an option.
[68] Ms Walker is right to say that this finding was contrary to the daughter’s evidence the Tribunal recorded in its decision. Adopting the comments of Wild J in Mohamud,35 she submitted that the Tribunal failed to draw an inference favourable to Mr Dong from the unchallenged primary facts. In her view the only inference reasonably open to the Tribunal was that Mr Dong would not be able to take care of himself in China.
[69] In response, Mr Jensen for the Minister asserted that the Tribunal had the benefit of hearing the daughter (by phone) and assessing all her evidence in context. I note also that there is no transcript available in a leave application like this. So, I am not entirely sure if this aspect of Mr Dong’s daughter’s testimony was closely examined by the Tribunal. But even if not, Mr Jensen’s point is that the Tribunal did not misstate the daughter’s evidence. Nor did the Tribunal make an express contrary finding. Instead, he says, the Tribunal simply left open a possibility available to the daughter for her father’s care.
[70] In my view, it would have been preferable for the Tribunal to have made this observation at the end of this part of its decision. In that way it could have been expressed simply as an option for the daughter given the Tribunal’s finding.
[71] If this were the only observation the Tribunal made on the topic, then I would have accepted that it might have been a factual finding for which there was no evidential basis. But crucially, the Tribunal went on to say:
33 Tribunal Decision at [47].
34 At [47].
35 Mohamud v Minister of Immigration, above n 25, at 5.
[48] It is accepted that it is a custom in China that children will care for their parents in old age, but it is not an imperative. The appellant’s daughter has not, for example, returned to New Zealand to care for the appellant, even though he has been out of prison for nearly three years now, living without any family support here.
[49] If she elects to return to New Zealand, it is clear that the appellant’s daughter and her family could remain in contact with her father by electronic means and visits, as they currently do and as they have been doing for a long time.
[72] It can be seen in these passages that the Tribunal very much accepted that Mr Dong’s daughter might, as she said, return to New Zealand. The Tribunal reasoned that if she did, and Mr Dong were deported, she could remain in contact with her father by electronic means, and could make the visits to see and support him as they have been doing for a long time (albeit in reverse). She would also have the option of supporting him financially from New Zealand. In this way, I conclude that the Tribunal did not proceed simply on a wrong factual view that the daughter could stay in China. The Tribunal made clear it would very much be her election whether or not she did so – and if not, the Tribunal addressed other reasonable options.
[73] Nor do I think it is fair for Ms Walker to stress that the only inference reasonably open to the Tribunal was that Mr Dong would not be able to take care of himself in China. He is able to take care of himself in New Zealand, though needs a little help from a friend or friends. There was no evidence that same support would not be available in China – even if not directly provided by Mr Dong’s daughter.
[74] Ms Walker has zeroed in on one paragraph of the decision. Again, when the Tribunal’s comments are regarded as a whole, the Tribunal’s findings are clear. If Mr Dong is deported, his daughter can support him in effective ways, even if she returns to New Zealand as she plans to do. The consequences of her return to New Zealand were reasonably addressed by the Tribunal. It did not proceed simply on the basis that she could and might stay in China. I conclude this argument also fails.
Overall analysis of the three arguments
[75] All three arguments focus on parts of the Tribunal’s decision but, with respect, do not place those remarks in context nor look at the reasoning as a whole.
[76]Katz J’s observations in Nabou v Minister of Immigration are apposite:36
Judges have repeatedly warned against minute and detailed analysis of the facts or separate parts of the decision in an attempt to expose defects or to identify some error or imperfection which can be elevated into an error of law. The decision must be looked at as a whole.
[77] This is exactly the situation here. As a whole, the decision is sound and was open to the Tribunal. I see no errors of fact finding or weight apportionment. As Katz J observed later in Nabou:37
The reality is that [the applicant] seeks a full merits appeal of the Tribunal’s decision, which he is not entitled to.
[78] If, contrary to my view, there are errors as to the evaluation, assessment and weight given to the facts before the Tribunal – then those errors, in combination and in the context of the whole decision, are certainly not so grave as to constitute an error or errors of law in the Taafi sense.38 Let alone are they capable of becoming, as errors of law based on fundamental errors of fact, questions of general or public importance or which for any other reason require a full appeal hearing. The alleged errors of fact here are specific to Mr Dong’s case and do not suggest existing law should be revisited. Nor could the alleged errors amount to an exceptional case involving individual injustice to such an extent this Court simply could not countenance the Tribunal’s decision standing.
[79] Therefore, Mr Dong’s case, facing the high “triple hurdle” set out in Taafi, fails at the first hurdle. And even if the first hurdle could be jumped – the second and third hurdles could not be surmounted.
Result
[80] I accept that Mr Dong will be devastated regarding the order for his deportation. Equally, his family will be deeply disappointed. However, the threshold
36 Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9] (footnotes omitted).
37 At [33].
38 Taafi v Minister of Immigration, above n 24, at [19].
for granting leave to appeal based on alleged factual errors by the Tribunal is a high one. It is not met in this case.
[81] The application for leave to appeal is refused. The deportation order must stand.
Becroft J
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