Fang v Ministry of Business, Innovation and Employment

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA369/2016
[2017] NZCA 190

BETWEEN	MINGBO FANG Appellant
AND	THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent

CA370/2016
BETWEEN	THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Appellant
AND	DEFANG DONG Respondent

CA423/2016
BETWEEN	MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Appellant
AND	ZHIWEI LI Respondent

Hearing:	28 February 2017
Court:	Kós P, Winkelmann and Brown JJ
Counsel:	I C Carter and N Fong for the Ministry of Business, Innovation and Employment and its Chief Executive D Zhang for Mr Fang and Mr Dong S M Kilian for Mr Li
Judgment:	19 May 2017 at 12.30 pm

JUDGMENT OF THE COURT

AThe appeal in CA369/2016 is allowed. The decision is to be remitted back to the Ministry of Business, Innovation and Employment to enable the immigration officer who had the conduct of the deportation process to comply with the obligation under s 177(5) as set out in this judgment.
B The appeal in CA370/2016 is allowed in part. The interim order staying Mr Dong’s deportation pending the remission back to the relevant immigration officer is set aside.

C The appeal in CA423/2016 is dismissed.

DThe Ministry of Business, Innovation and Employment must pay Mr Li costs for a standard appeal on a band A basis and usual disbursements. The Ministry of Business, Innovation and Employment must pay Messrs Fang and Dong together one set of costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

Table of Contents

Para No

Introduction [1]

The Record of Personal Circumstances form [5]

Factual background [9]

Mr Dong’s interview  [9]
Mr Li’s interview  [13]
Mr Fang’s interview  [16]

The competing contentions [20]

The Ministry’s case [24]
The arguments for Messrs Fang, Dong and Li [28]

Was the issue determined by this Court in Singh? [31]

Interpretation of s 177(5)(b)[37]

Text  [39]
Purpose — the cross-check  [53]
Conclusion  [62]
Substantive relief  [66]

Section 177(5)(a)  [73]
Interim relief  [78]
Result  [83]

REASONS OF THE COURT

(Given by Brown J)

Introduction

Although the discretion of an immigration officer under s 177(1) of the Immigration Act 2009 (the 2009 Act) to cancel a deportation order is stated to be absolute,[1] the officer is nevertheless obliged to consider cancellation if the deportee provides information concerning his or her personal circumstances which is relevant to New Zealand’s international obligations.[2] While not obliged to give reasons for the decision to cancel or not cancel a deportation order,[3] when an officer does have regard to international obligations the officer is required by s 177(5) of the 2009 Act to record both a “description of the international obligations” and “the facts about the person’s personal circumstances”.
[1]Absolute discretion is defined in s 11 of the Immigration Act 2009.
[2]Immigration Act 2009, s 177(2).
[3]Section 177(4)(a).
At present, Immigration New Zealand’s policy to comply with s 177(5) is to have immigration officers conduct an interview with potential deportees and fill out a Record of Personal Circumstances (RPC) form.[4] This form is aimed at eliciting a wide range of personal information about the person. These three appeals concern the question whether the obligation in s 177(5)(b) to record “the facts about the person’s personal circumstances” is satisfied by the completion of that RPC form or whether it is necessary for a discrete record to be made of those aspects of the person’s personal circumstances which are specific to the relevant international obligations.
[4]Discussed further at [5]–[8] below.
In Dong v The Chief Executive of the Ministry of Business, Innovation and Employment[5] and Li v Ministry of Business, Innovation and Employment[6] it was held by Davidson and Davison JJ respectively that a specific record must be made. The Ministry of Business, Innovation and Employment and its Chief Executive (the Ministry) appeal those decisions. In Fang v The Ministry of Business, Innovation and Employment[7] Duffy J was similarly of the opinion that a specific record was required but, because she considered that she was bound by the decision of this Court in Singh v Chief Executive, Ministry of Business, Innovation and Employment,[8] she ruled to the contrary and held that the completion of the RPC form was sufficient. Mr Fang appeals that decision.
[5]Dong v The Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 1468, [2016] 3 NZLR 357.
[6]Li v Ministry of Business, Innovation and Employment [2016] NZHC 1788.
[7]Fang v The Ministry of Business, Innovation and Employment [2016] NZHC 1630.
[8]Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93.
Hence the primary issues on appeal are whether Singh is determinative of the question and, if not, the correct interpretation of s 177(5). Irrespective of the outcome of the appeals, the Ministry also seeks to have set aside a stay of deportation granted by Davidson J in Dong.[9]

The Record of Personal Circumstances form

[9]Dong, above n 5, at [93].

As noted above at [2], when a person is liable for deportation it is the policy of Immigration New Zealand to conduct an interview with that person and complete an RPC form. It is not a prescribed form but, as the submissions of Mr Carter for the Ministry explained, was designed by officials with the aim of eliciting all relevant information from a potential deportee.
The RPC form spans 28 pages and comprises 13 sections:
A        Record details
B        Person’s details
C        Legal representation
D        Caution
E         Custodial/Non-custodial departure
F         Personal circumstances
G        Personal background
H        Details about the person’s immigration status in New Zealand
I          Person’s family circumstances
J          Children
K        Employment history and financial factors
L         Health and special needs
M        Character

The form makes provision for detailed responses and specifies that documents may be attached.

In section B, where the form requires an indication whether or not the person liable for deportation is in custody, the person conducting the interview is directed to inform the proposed deportee that he or she has the opportunity to provide the interviewer with information about his or her personal circumstances and that, if that information is relevant to New Zealand’s international obligations, the interviewer must consider cancelling the deportation order.
The final page of the RPC form headed “Decision” appears designed to address the immigration officer’s obligations under s 177(5). This provides a tick-box to confirm that the person’s personal circumstances have been recorded in the RPC form. It then requires the immigration officer to indicate whether or not the person’s circumstances engage New Zealand’s international obligations identified as being relevant to the deportation decision. If the answer to that is affirmative, the officer must list the obligations the officer has considered in making the decision. In all of the cases which have addressed s 177(5), immigration officers have utilised an RPC form.

Factual background

Mr Dong’s interview

In December 2011 Mr Dong entered New Zealand from China on a five‑month temporary (student) visa which expired in April 2012. He was arrested at a random police check-point and served with a deportation order in March 2016. Mr Dong was interviewed by two compliance officers via an interpreter at the Christchurch Central police station on 18 March 2016, at which time the RPC form was completed. Mr Dong’s case was then reallocated to a second immigration officer for consideration who, on 20 April 2016, completed the “Decision” page and determined not to cancel the deportation order.
The decision commenced with the pre-printed statement, answered in the affirmative, that “the facts about the person’s personal circumstances are recorded in this template”. The question whether Mr Dong’s circumstances engaged New Zealand’s international obligations identified as being relevant to the deportation decision was also answered in the affirmative.
There followed a handwritten list of various articles of the International Convention on Civil and Political Rights (ICCPR)[10] and the International Covenant on Economic, Social and Cultural Rights (ICESCR).[11] There was no separate statement of the facts which were considered relevant to those international obligations.
[10]Namely arts 17 and 23.
[11]Articles 6, 7, 10, 11 and 13.
The decision concluded with the pre-printed statements:
I have carefully considered the person’s personal circumstances and any applicable international obligations.
I am not obliged to provide reasons for my decision by virtue of section 177(4)(a) of the Immigration Act 2009.

Mr Li’s interview

Mr Li arrived in New Zealand in November 2002 on a student visa. After his last visa expired on 9 May 2010 he remained unlawfully in New Zealand. On 15 October 2012 Mr Li was charged with one count of obtaining an NZQA diploma by deception and on the same day was served with a deportation order. However, two days later it was agreed that the enforcement of the deportation order would be deferred pending determination of the criminal proceedings. On 29 April 2015 Mr Li was found guilty on the charge.
In order to proceed with his deportation in September 2015 Mr Li was interviewed and an RPC form was completed. Although the “Decision” page of the RPC form was left blank, a separate five-page document was prepared which followed the format of the standard Decision page.
The decision commenced in the same manner as Mr Dong’s.[12] It then listed 60 items of information said to be attached to the decision. It identified as the international obligations to which regard had been had as being:
(a)three articles of the ICCPR;[13]
(b)seven articles of the ICESCR;[14]
(c)ten articles of the United Nations Convention on the Rights of the Child (UNCROC);[15]

It concluded with the same two pre-printed statements as in Mr Dong’s case.[16]

Mr Fang’s interview

[12]At [10] above.

[13]Articles 17, 23 and 24.1.

[14]Articles 6, 7, 9, 10, 10.3, 11 and 12.

[15]Articles 3, 5, 7.1, 8, 12, 16, 18.1, 27.1, 27.2 and 28.

[16]At [12] above.

Mr Fang has been unlawfully in New Zealand since his visa expired in May 2012. In August 2015 he was apprehended for a traffic offence, taken into custody and served with a deportation order. He was interviewed at the Rotorua police station on 17 August 2015 at which time an RPC form was completed.
A separate two-page decision document was completed by an immigration officer and sent to Mr Fang via his counsel on 24 August 2015. The letter accompanying that decision stated that, in reaching the determination, the officer had considered the information provided in his interview, an interview with Mr Fang’s partner, his counsel’s oral submissions of 18 August 2015 and two sets of written submissions dated 20 August 2015.
The decision itself commenced with the following statement:
The facts about Mingbo FANG’s personal circumstances are recorded in the Record of Personal Circumstances, the Interview with [Mr Fang’s partner] including counsels Oral Submissions, the two sets of submissions dated 20 August 2015 which included [Mr Fang’s partner’s] Certificate of Citizenship, Country Research Branch Information received in Response to my request of 18 August 2015 and the further information requested on 20 August 2015 including the information contained on the electronic links and the information contained on immigration file … .

Further information was said to be attached to the decision.

The question concerning New Zealand’s international obligations was answered in the affirmative. Reference was then made to:
(a)two articles of the ICCPR;[17]
(b)seven articles of the ICESCR;[18]
(c)a provision from the Universal Declaration of Human Rights;[19]
(d)the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health.

Mr Fang’s decision concluded with the same two paragraphs as in the decisions involving Messrs Dong and Li.[20]

The competing contentions

[17]Namely arts 17 and 23.

[18]Articles 6, 7, 9, 10, 11, 12 and 13.

[19]Related to the rights of persons with mental illness.

[20]At [12] above.

Section 177 has spawned a considerable volume of case law which was thoroughly canvassed in the written submissions on these appeals. It will suffice to refer to two decisions of this Court which recognise the constraints on judicial review in the context of what has been described as the “last ditch” opportunity to have a deportation order cancelled.[21]

[21]Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2010] NZCA 248, [2016] NZAR 836 at [30].

First, with reference to an immigration officer’s obligation to consider relevant obligations it was said in Chief Executive of the Ministry of Business, Innovation and Employmentv Liu that:[22]
Where any [international obligations] are relevant, the officer must record a description of them and the facts about the deportee’s personal circumstances. Manifestly, s 177 offers an inauspicious setting for judicial review but, as Whata J recognised, the courts may at least review an immigration officer’s decision for compliance with these requirements.
[22]Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37, [2014] 2 NZLR 662 at [8] (footnotes omitted).
Second, Singh v Chief Executive, Ministry of Business, Innovation and Employment reiterated that s 177 had severely circumscribed the scope for judicial review, effectively limiting it to a Wednesbury unreasonableness inquiry.[23] The Court confirmed that, although obliged to have regard to any relevant international obligations, an immigration officer was not obliged to give effect to those obligations in some particular way or at all.
[23]Singh, above n 8, at [46].
However the Court’s summary of the features of s 177 concluded:
[24] Seventh, to the extent the [immigration officer] does have regard to international obligations, the [immigration officer] is obliged to record a description of them and of the (related) facts about the deportee’s personal circumstances: s 177(5).

Referencing Liu, the Court observed that a reviewing Court can check the immigration officer’s compliance with s 177, particularly s 177(5).[24]

The Ministry’s case

[24]At [50].

It was the Ministry’s contention that the numerous judgments in the High Court and this Court concerning cases where the RPC form had been utilised meant that it had been consistently accepted that the s 177(5)(b) obligation was discharged by the completion of that form. In particular, reference was made to the decision of Lang J in Babulal v Chief Executive, Department of Labour, which specifically considered the question of whether the RPC form was sufficient to comply with the recording obligation in s 177(5)(b).[25] The Judge concluded that it was, determining that:
[75] The section contemplates the immigration officer recording the material facts upon which his or her decision is based. That can be done either by recording the facts in narrative form or by listing and/or describing the documents in which the facts are to be found. In the present case [the immigration officer] adopted the later technique.
[25]Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773, 29 September 2011.
Lang J’s approach was followed by Brewer J in Leung v The Chief Executive of the Ministry of Business, Innovation and Employment[26] and Woodhouse J in Zheng v The Chief Executive of the Ministry of Business, Innovation and Employment.[27]
[26]Leung v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 1158 at [15].
[27]Zheng v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 1257 at [10].
The Ministry submitted that Dong and Li, together with Duffy J’s supportive comments in Fang, which instead followed the decision of Fogarty J in Ewebiyi v Parr,[28] were “outliers”. It supported the conclusion in Fang that the Babulal approach had been confirmed, albeit implicitly, in this Court’s judgment in Singh.[29] It contended that:
(a)the effect of Dong and Li and the argument advanced in Fang was that an immigration officer would be required to identify and select specific facts out of all the information provided by the potential deportee and then relate those facts to a specific international obligation;
(b)it was unlikely that, simply by the use of the words “related” and “relevant”, this Court in Singh had intended to depart from, let alone overrule, Brewer J’s views on the scope of s 177(5). The better inference was said to be that this Court did not consider the Babulal approach was inconsistent with the obligation to record relevant or related facts.
(c)the correlation of potentially different facts to individual international obligations would reveal an immigration officer’s thought processes and would be tantamount to imposing an obligation to give reasons; and
(d)section 177 reflected Parliament’s recognition of the impracticality of requiring immigration officers to do so, in particular by the exclusion of an obligation to give reasons in s 177(4)(a).
[28]Ewebiyi v Parr HC Christchurch CIV-2011-409-2010, 7 December 2011.
[29]Singh (CA), above n 7.
The implications of a rejection of the Ministry’s contention were dramatically depicted:
There are considerable downstream ramifications for proper administration of the deportation provisions of the immigration legislation. If [immigration officers] at the “last-ditch stage” of the immigration process are required to produce a formal statement isolating and summarising relevant facts and identifying the particular obligations that are engaged by those facts, the process will be slowed to the point of institutional paralysis. [Immigration officers] (who are not required to have legal or other tertiary qualifications) would require legal advice before finalising any deportation decision, there would be considerably greater scope for legal challenges, a higher volume of immigration cases would go through the courts, consequential litigation delays and the inevitable passage of time in individual cases will favour the unlawfully present.

The arguments for Messrs Fang, Dong and Li

The common theme in the submissions for Messrs Fang, Dong and Li was that, while immigration officers were not required to compile a statement of facts in the manner of a court or tribunal giving a reasoned decision, s 177(5)(b) clearly imposes an obligation to prepare a statement of relevant facts separate from the RPC form. Further, it was submitted for all parties that this Court’s decision in Singh was not binding, nor did it specifically determine the issue under appeal here. The sequence of High Court decisions, including Babulal,[30] Leung[31] and Zheng,[32] all of which preceded the judgments under appeal, were explained as having been not fully argued and decided prior to this Court’s decision in Singh.
[30]Babulal, above n 25.
[31]Leung, above n 26.
[32]Zheng, above n 27.
On the issue of the mode of compliance with s 177(5)(b) there was some divergence between the parties. For Mr Li, Mr Kilian accepted that the example provided by Davidson J in Dong,[33] and echoed by Davison J in Li,[34] was sufficient compliance. Mr Zhang, however, for Messrs Fang and Dong contended that the stated facts should be separately listed in respect of each international obligation described.
[33]Dong, above n 5, at [49].
[34]Li, above n 6, at [57].

Furthermore, despite the absence of any cross-appeal, Mr Zhang’s oral submissions explored the requirement for a description of international obligations in s 177(5)(a). He contended that it was not sufficient simply to list the article number of a particular convention or treaty but that the word “description” necessitated a brief summary of the content of the particular obligation.

Was the issue determined by this Court in Singh?

Although Duffy J preferred the approach in Ewebiyi, she considered herself bound by Singh, explaining:[35]
[26] The expressed reasoning of the Court of Appeal in Singh approved Lang J’s general approach in Babulal. The Court of Appeal also expressly found that there was no error in Brewer J’s approach; this was in circumstances where the s 177 decision took the same form as the s 177 decision in Babulal, and the approach adopted by Brewer J was the same as that taken by Lang J in Babulal. This causes me to conclude that I should find that a s 177 decision which follows the form of the decision in Babulal will comply with the requirements of s 177, and in particular s 177(5). As the decision under review does this, I find that it was not made in error of law.
[35]Fang, above n 7.
However this Court’s consideration in Singh was confined to the issues live on that appeal, namely whether Brewer J erred in declining to allow cross‑examination of the immigration officer and whether the Judge’s approach to review of the s 177 decision was erroneous.[36] In finding no error in the first instance decision the Court expressed agreement with the Judge’s reasoning only in relation to the immigration officer’s consideration of the child’s situation and the Judge’s decision declining to allow cross-examination. The Court’s endorsement of Babulal was directed to the extremely limited scope for judicial review under s 177.[37]
[36]Singh, above n 8, at [3].
[37]At [44]–[46].
As Professor A L Goodhart explained in his description of ratio decidendi, the principle of a case is found by taking account of (a) the facts treated by the Judge as material and (b) the Judge’s decision as based on them.[38] While in Singh an RPC form was completed and there was no separate record of facts relevant to the international obligations identified, this Court did not express a conclusion on the meaning of s 177(5)(b) or make any decision as to its application to the facts because that was not a live issue on appeal.
[38]A L Goodhart Essays in Jurisprudence and the Common Law (Cambridge University Press, London, 1931) at 25.
In our view the judgment of Davison J in Li provides the correct analysis of the scope of this Court’s finding in Singh:[39]
[60] I respectfully disagree with Duffy J’s view that Lang J’s view on the [immigration officer’s] recording obligation in Babulal was explicitly approved by the Court of Appeal in Singh and that therefore this Court is bound by it. Although the Court of Appeal did approve Lang J’s comments about the “extremely limited” scope of judicial review under s 177 generally, nothing was said about his Honour’s interpretation of what is required of an [immigration officer] by s 177(5). Indeed, the issue in Singh did not require the Court to consider the scope of an [immigration officer’s] recording obligation under s 177(5), and consequently, in my view the Court of Appeal cannot be said to have spoken about and provided direct authority on the issue.
[39]Li, above n 6.
The only observations in Singh touching on s 177(5) were obiter dicta. Those observations emphasised the need for a relationship between the recorded facts and the international obligations described.[40] Hence, we do not consider that Singh is binding authority on the issue of the construction of s 177(5)(b), and, in any case, in fact it points in the direction taken in both Dong and Li.
[40]Singh, above n 8, at [24] and [64].
Accordingly, we turn to interpret the meaning of s 177(5)(b) afresh.

Interpretation of s 177(5)(b)

It is necessary to view the subsection in the context of the section as a whole, in particular the “trigger” to consideration of cancellation of a deportation order in subs (2),[41] and the extent of the consequential obligation to consider relevant international obligations in subs (3). For that reason we set s 177 out in full:
[41]Singh, above n 8, at [16].
177      Deportation order may be cancelled
(1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.
(2) Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand’s international obligations.
(3) If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise—
(a)       may make a decision as he or she thinks fit; and
(b) in doing so, is not under any obligation, whether by implication or otherwise,—
(i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or
(ii) to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.
(4) Whether or not an immigration officer considers cancelling a deportation order,—
(a) he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and
(ab) privacy principle 6 (which relates to access to personal information and is set out in section 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application; and
(b) section 23 of the Official Information Act 1982 does not apply in respect of the decision.
(5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—
(a)       a description of the international obligations; and
(b)       the facts about the person’s personal circumstances.

The meaning of s 177(5) is to be ascertained from its text and in the light of its purpose.[42] As the Supreme Court observed in Commerce Commission v Fonterra Co-operative Group Ltd, in determining purpose the Court must obviously have regard to both the immediate and the general legislative context.[43] The social, commercial or other objective of the enactment may also be relevant.

Text

[42]Interpretation Act 1999, s 5(1).

[43]Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22].

The obligation in s 177(5) is a recording function. It was common ground that the verb “record” was used in the ordinary sense that has gained prominence in modern usage, namely to set down in writing in some permanent form. An immigration officer is required by s 177(5) to make such a notation of the two specified matters only when, and to the extent that, the officer has had regard to New Zealand’s international obligations in the course of the s 177 process. It is instructive to consider the section both in its entirety and in the context of the 2009 Act.
So far as the latter is concerned, it will suffice to refer to the three points which this Court in Singh identified as emerging from the framework of the 2009 Act:[44]
(a)The 2009 Act aims to balance New Zealand’s interest (in not permitting people to be in New Zealand unlawfully) with the right of individuals.
(b)Part 6 of the 2009 Act, dealing with deportation, has the purpose of supporting the integrity of New Zealand’s immigration system.
(c)Section 177, which is positioned toward the end of pt 6 after ss 175 and 175A but before s 178 (which is headed “executing deportation order”), provides a last-ditch opportunity to have cancelled a deportation order made as a result of the detailed and careful deportation process set out in pt 6.
[44]Singh, above n 8, at [12]–[14].
Turning to the structure of s 177, subs (1) and the first sentence of subs (2) maintain respectively both the officer’s entitlement to cancel a deportation order and the absence of any entitlement for the deportee to apply for same. That reflects the position as originally introduced by s 52A of the Immigration Act 1987 (the 1987 Act).[45]
[45]As introduced by s 23 of the Immigration Amendment Act 1991.
The officer’s absolute discretion is then qualified in the event that the deportee provides information concerning the deportee’s personal circumstances which information is relevant to New Zealand’s international obligations. In that event the immigration officer is obliged to consider cancellation of the deportation order.[46]
[46]Immigration Act, s 177(2).
On such consideration the immigration officer must have regard to any relevant international obligations but otherwise may make such decision as the officer thinks fit.[47] Subsection (4) preserves the exemption as provided in s 52A(3)(b)(i) of the 1987 Act from an obligation to give reasons for any decision reached by the officer on consideration of cancellation.
[47]Section 177(3).
Subsection (5) then introduces the second qualification by imposing an obligation to make a record of specified matters when, in discharging the obligation in subs (3), the officer has had regard to any relevant international obligations.
From that structure we distil the following points in relation of s 177:
(a)The trigger to an immigration officer’s obligation to consider cancellation is the provision by a deportee of information concerning the deportee’s personal circumstances which is relevant to one or more of New Zealand’s international obligations.
(b)It is those obligations to which the immigration officer “must then have regard” under subs (3), a phrase which, as noted in Singh,[48] it can confidently be said Parliament selected deliberately.
(c)The description of the international obligations which an immigration officer is obliged to record under subs (5)(a) are only such obligations as are rendered relevant by the deportee’s provision of information in subs (2).
(d)The facts which an immigration officer is obliged to record under subs (5)(b) are only those pertaining to the deportee’s personal circumstances which triggered the obligation to consider international obligations. This Court in Singh described them as “related” facts.[49] We agree with Davison J in Li that the use of the phrase “facts about” the deportee’s personal circumstances was a considered choice which serves to emphasise the focussed task in subs 5(b).[50]
(e)The sequence in the required recording of the description of the international obligations followed by the related facts is in itself significant. As Fogarty J observed in Ewebiyi:[51]
Relevance is a qualifier applied to facts which are made relevant by considering them against the relevant international obligations. That is why subs (5) naturally orders: (a) international obligations, before (b) facts.
(f)There is a relationship between the two matters which the officer is obliged to record. We consider the legislature intended that the task of recording those matters would be undertaken once the officer had concluded his consideration of cancellation.
[48]Singh, above n 8, at [17].
[49]At [24].
[50]Li, above n 6, at [74]–[75].
[51]Ewebiyi, above n 28, at [57].
A consideration of the text of s 177 leads us to conclude that, notwithstanding that an immigration officer is not required to give reasons for a decision on considering cancellation of a deportation order, the officer is directed to make a specific notation which both describes any New Zealand international obligations to which the officer has had regard pursuant to s 177(3) and then states the facts concerning the deportee’s personal circumstances which prompted the officer’s reference to those international obligations.
In the normal course we would expect that the record of such facts would be a small subset of the information which a deportee is likely to provide in response to the range of questions in the RPC form. We do not consider that compiling a record of those pertinent facts should be an onerous task. On that issue we agree with the observations of Davidson J in Dong:[52]
[49]     A decision about the facts is expressly not required, but a record of “the facts”, if there are any, is expressly required. This might be a brief statement along the lines:
Information about the applicant’s personal relationships included:
·     his partnership and marriage to Ms Liu
·     the future of that relationship should he be deported to China … (etc).
[52]Dong, above n 5.
Hence we do not accept the proposition advanced in the Ministry’s notices of appeal in Dong and Li that the judgments under appeal required the officer to separately summarise and record facts stated to be relevant to specific international obligations “in the manner of a court or tribunal making formal findings of fact”. While framed as a qualification, s 177(5) does not impose on an officer an obligation to give reasons for his or her decision on the issue of cancellation of a deportation order.
Nor do we endorse the suggestion that the record of pertinent facts must involve a distinct list of facts specific to each international obligation identified as stated as the first issue in the agreed list of issues on appeal:
Is the obligation on an immigration officer under s 177(5) of the Immigration Act 2009 to record facts about a potential deportee’s personal circumstances satisfied by completing the Record of Personal Circumstances form during and after interview of the potential deportee, including by list or description of documents in which the facts may be found OR is the immigration officer required to select and record particular facts which the immigration officer considers to be relevant to each specific international obligation.
Accordingly, we reject what was ultimately the Ministry’s primary submission that, because the pertinent facts are a subset of the information compiled in the RPC form, it must follow that the recording of the information in that form necessarily also involves the recording of the requisite facts.
Our view is that the recorded facts contemplated by subs (5)(b) are those which bear on the international obligations the subject of the description required by subs (5)(a). We do not consider that the direction to compile a record of those specific facts is achieved by the compilation of a much more extensive document (namely the RPC form, together with any annexures), which may comprise a variety of statements, observations and even expressions of opinion, which are not facts as envisaged by subs (5)(b) or even facts at all. The well-known haystack metaphor springs to mind.
Similarly, we do not accept that purporting to provide a record of the pertinent facts by the adoption of the technique of a reference back to the entire contents of the RPC form, which Davidson J described as “record of the record”,[53] is an adequate discharge of the obligation imposed on the officer by subs (5)(b).

Purpose — the cross-check

[53]At [38].

The introduction of the obligation to record the s 177(5) matters needs to be viewed in the context of Parliament’s negation of the Supreme Court’s holding in Ye v Minister of Immigration.[54] The 1987 Act had made provision for the cancellation of removal orders by immigration officers since 1991. A deportee had no right to apply for cancellation and the immigration officer had no obligation to give reasons for the decision. In Ye v Minister of Immigration the Supreme Court held that it was necessary to apply the s 47(3) test[55] at the last stage of the removal or deportation process. However as this Court observed in Parmanadan v Minister of Immigration, the subsequent amendment to s 58 (and the introduction of s 177 of the 2009 Act) represented a sharp legislative rejection of the Supreme Court’s ruling in Ye.[56]
[54]Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
[55]Requiring a consideration of whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand.
[56]Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424 at [7].
The circumstances are conveniently recorded in Chief Executive of the Ministry of Business, Innovation and Employment v Nair:[57]
[34] … s 177 was inserted (as cl 165A) by a supplementary order paper following the select committee recommendation that the Bill should include a provision for cancellation of a deportation order. The supplementary order paper explains the wording of s 177 was a response to the judgment of the Supreme Court in Ye v Minister of Immigration, which was delivered after the select committee stage and second reading of the Bill. The supplementary order paper in Committee included two clauses responding to that decision. One was cl 165A, which became s 177; the other was cl 432, which amended s 58 of the 1987 Act.
[35] The explanatory note to the paper discusses these changes:
… new clauses 165A and 432 are inserted, to ensure that certain decisions (for example, decisions about whether or not a person liable for deportation (or removal under the Immigration Act 1987) from New Zealand should be deported (or removed)) are decisions made by immigration officers implementing the practical elements of the final stage of removal of the person and do not require any test or any particular test. In particular, immigration officers are not required to apply the test set out in section 47(3) of the Immigration Act 1987 or in clause 186 of the Bill, as the case may be, when considering cancellation of a removal order or a deportation order. At this stage, the essential legal issue is whether the person is in New Zealand unlawfully. These amendments overturn the future effect of most of the key findings (including the findings that required immigration officers to apply the humanitarian appeal test and imposed duties of inquiry on them) in the recent Supreme Court decisions Ye v Minister of Immigration; Qiu v Minister of Immigration …, and Huang v Minister of Immigration …, all judgments being delivered on 20 July 2009. The amendments, however, do not affect the position of the litigants in those decisions.
[57]Nair, above n 21 (footnotes and citations omitted).
In addition to curbing the impact of the Supreme Court decisions, the new s 177 imposed an obligation on immigration officers to have regard to such of New Zealand’s international obligations as were identified as relevant to the personal circumstances of a proposed deportee and to make a record of the facts about those circumstances and the relevant international obligations.
In explaining the government’s concern the speech on behalf of the Minister of Immigration during the Third Reading of the Immigration Bill 2007 (132-3) drew specific attention to the legislative requirement for immigration officers to take account of New Zealand’s international obligations when executing deportation orders:[58]
The Government was concerned about the practical implications of a recent Supreme Court decision that required a complex humanitarian test to be applied by immigration officers at the final point of removing an overstayer. That is why the Government’s Supplementary Order Paper 32 included amendments to the Immigration Act 1987 in relation to the cancellation of a removal order, and to the provisions in the bill relating to the cancellation of a deportation order. There is a formal process that allows most overstayers to lodge a humanitarian appeal within 42 days of becoming overstayers if there is good reason they should not leave New Zealand. The time for overstayers to raise concerns is not at the last minute before they board the plane. Expecting an immigration officer to apply a complex legal case at the time is just not practical. However, immigration officers will still take account of New Zealand’s recent relevant international obligations when executing removal or deportation orders, if an overstayer gives information relevant to those obligations to the officers. The amendments to the bill have made this clear.
[58](29 October 2009) 658 NZPD 7638.

The penultimate sentence referred to the obligation in s 177(3) to have regard to any relevant international obligations. The sentences which precede it note the context in which decisions on cancellation of removal orders are considered and serve to explain why immigration officers are not obliged to make such decisions in accordance with international obligations and are not required to give reasons for their decisions.
Although the recording obligation in s 177(5) is framed as a qualification to the preceding subsection, we do not consider that it was intended to impose an obligation on immigration officers to give reasons. Rather we infer that the purpose of the subsection is to cause a record to be made that New Zealand’s international obligations have in fact been considered by an immigration officer when the circumstances render them relevant to a cancellation decision.
As noted by this Court in Liu[59] and Singh,[60] the consequence of a record being made of the international obligations considered by an immigration officer and the related facts would enable the Court on review to at least be satisfied that the obligation imposed by s 177(3) had been addressed, albeit not discharged in some particular manner.
[59]Liu, above n 22, at [8].
[60]Singh, above n 8, at [50].
We agree therefore with the Ministry’s submissions that the purpose of the subsection is not to send a message about the manner of New Zealand’s compliance with its international obligations but to ensure that the performance of the obligation is discharged and to provide the Court with a real, but limited, degree of scrutiny of such performance.
Consequently the identified purpose of subs (5) aligns with our interpretation of the subsection by reference to the text of s 177.

Conclusion

In circumstances where an immigration officer is required to have regard to New Zealand’s international obligations in the course of considering the cancellation of a deportation order, the officer is required to make a specific record of the facts which prompted reference to those obligations.
The record of facts may be succinct in the manner discussed at [47] above. The facts need not be marshalled by reference to individual international obligations. However it must be a record dedicated to the function of stating the facts relevant to the international obligations to which the immigration officer has had regard. A completed RPC form will not suffice as the record required by s 177(5)(b), nor will a mere cross-reference to a RPC form or other listed documents. To permit otherwise would defeat the purpose of the provision which is to ensure that the fact of consideration of New Zealand international obligations is both transparent and amenable to judicial review.
We do not consider that the Ministry’s apprehensions concerning the ramifications of our interpretation of the provision are justified.[61] In introducing this procedure the Minister of Immigration recognised that it is not practical to expect an immigration officer to apply a complex legal case at the point of deportation.[62] That reality is reflected in the power to make such decision on cancellation as the immigration officer thinks fit together with the absence of any obligation to give reasons for the decision.
[61]Set out at [27] above.
[62]At [56] above.
However, specific provision was made to impose on immigration officers the obligation to take account of New Zealand’s international obligations when relevant information is provided by deportees. While noting the Ministry’s submission that immigration officers are not required to have legal or other tertiary qualifications, we do not consider that our interpretation of that obligation as imposed by s 177(5)(b) is unduly onerous. In order for an immigration officer to conclude that he or she is required to have regard to some international obligation, it will be necessary for the officer to have identified facts which caused that international obligation to be relevant to the particular case. All that s 177(5)(b) requires is that those facts which triggered consideration of the international obligation should be recited. No additional analysis is required.

Substantive relief

In Dong and Li, upon the successful judicial review challenge, Davidson and Davison JJ respectively remitted the matters back to the Ministry to enable the immigration officer who had the conduct of the deportation process to comply with the obligation under s 177(5).[63] The third of the agreed issues on appeal was whether that substantive relief should have been withheld in the exercise of discretion.
[63]Dong, above n 5, at [92]; and Li, above n 6, at [118]–[119].
By analogy with the considerations relevant to interim relief discussed below, the Ministry submitted that, in the event the appeals in Dong and Li were dismissed and the Fang appeal allowed, relief should be withheld. The Ministry recognised that, even though public law remedies are discretionary, some circumstances require extremely strong reasons to decline relief where a public decision maker has been shown to have erred in the exercise of the decision making power.[64]
[64]Air Nelson Limited v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [59]–[61]; and Survey Nelson Ltd v Maritime New Zealand [2010] NZCA 629 at [52].
In these appeals the extremely strong reasons were said to be the same features of the statutory scheme that make it difficult to obtain interim relief to prevent deportation, namely that it would be unlikely for any visa to be granted in any case, unless each of Messrs Fang, Dong and Li were to depart New Zealand and re‑apply from offshore.
An alternative argument was advanced that, even if we ultimately found some procedural error in the immigration officers’ application of s 177, no relief should be given on the basis that it is highly unlikely that any of the three deportees would be granted a visa so long as they remained in New Zealand.
We consider that the Ministry’s submission erroneously seeks to merge the issue of relief on the substantive question with the issue of interim relief discussed below. We do not accept that because interim relief may be declined the Court should refuse to entertain the grant of meaningful relief with reference to the observance of the statutory process.
In the absence of a suitably qualifying record of the trigger facts and the relevant international obligations, it is not possible for the Court to assess the merits or otherwise of the challenges to the decisions. The enforcement of the proper discharge of that obligation should not be dependent on the happenstance of the residence of the applicants for the time being.
For the reasons given by Davidson J[65] and Davison J[66] we consider that the record required by s 177(5)(b) should be compiled. The same applies to Mr Fang’s case. In all three decisions under appeal the matter is to be remitted back to enable the immigration officer who had conduct of the process to comply with the recording obligation as set out in this judgment.

Section 177(5)(a)

[65]Dong, above n 5, at [51] and [92].

[66]Li, above n 6, at [118]–[119].

Although not foreshadowed in his written submissions, Mr Zhang for Messrs Fang and Dong invited the Court to also consider the interpretation of s 177(5)(a). He contended that it was not a sufficient description of the international obligation merely to refer to an article in a convention or treaty.
We agree that simply to provide a list of article or paragraph numbers of an international instrument would not be sufficient compliance with the requirement to provide a “description” of the international obligations. In our view, the employment of that word indicates that some indication of the substance of the particular obligation is required rather than merely identifying the applicable provision number. However, it will not be necessary to set out the full text of the particular obligation; a paraphrase of the primary content of the obligation will generally be a sufficient description for the purposes of the subsection.
In our view the obligation was properly discharged in the forms of decision involving both Messrs Dong and Li. For example, the international obligations referred to in Mr Dong’s case were:
International Convention on Civil and Political Rights (“ICCPR”)
-     not to be subjected to arbitrary or unlawful interference with family: art 17
-     family, natural and fundamental group unit of society, entitled to protection by society and state: art 23
International Covenant on Economic, Social, and Cultural [R]ights (“ICESCR”)
-     the right to work: art 6
-     the right to work in just and favourable conditions: art 7
-     widest possible protection and assistance should be given to family which is natural and fundamental group unit of society: art 10
-     an adequate standard of living, adequate food, clothing and housing: art 11
-     the right to education: art 13

The same level of description was provided in respect of Mr Li, the only material difference being the article number preceded the summary of the relevant provision.

The decision in respect of Mr Fang adopted the same format as that in Mr Li’s case. While the descriptions of the obligations in the ICCPR and the ICESCR were slightly more abbreviated, they were still sufficient descriptions for the purposes of the provision. The decision also referred to two international instruments which had been noted in communications from Mr Fang’s legal adviser, namely:
Universal Declaration of Human Rights: every person with a mental illness shall have the right to exercise all civil, political, social and cultural rights recognised
Principles for the Protection of Persons with Mental [I]llness and for the Improvement of Mental Health
In the case of the former it would have been desirable but not mandatory to identify the particular provision by number. We consider that the latter was unhelpfully vague and that reference should have been made to a specific obligation or obligations. However, given the way in which this issue has arisen, we make no directions concerning compliance with s 177(5)(a).

Interim relief

The second agreed issue on appeal was whether interim orders preventing deportation were correctly granted and continued in Dong. Given our conclusion on the primary issue, the question becomes whether interim relief should be granted pending the completion of the record on the remission back to the decision-maker.
Invoking the principles explained in Parmanadan,[67] the Ministry submitted that having regard to the statutory scheme including its emphasis on personal responsibility, the usual statutory effects of deportation will not generally be sufficiently adverse to meet the threshold for interim relief because it does not follow that a visa of one kind or another would ultimately be granted consequent on the completion of the record required by s 177(5).
[67]Parmanadan, above n 56, at [8]–[11].
Mr Zhang countered that the time has come to overrule Parmanadan. He submitted that the Court should reinstate the earlier approach in Esekielu v Attorney‑General,[68] which applied the classic interim relief principles from Carlton & United Breweries Ltd v Minister of Customs[69] and American Cyanamid Co v Ethicon Limited.[70]
[68]Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC).
[69]Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).
[70]American Cyanamid Co v Ethicon Limited [1975] AC 396 (HL).
However, the approach in Parmanadan has since been followed by this Court in Nair[71] and recently reiterated in Minhas v An Immigration Officer.[72] We do not accept that there is any justification for revisiting the now well-established approach. The removal of Messrs Fang, Dong and Li from New Zealand can have no bearing on the way in which the respective immigration officers complete their task under s 177(5)(b). Nor will the fact that Messrs Fang, Dong and Li are out of New Zealand affect any entitlement to seek review of the actions of the officers pursuant to the orders for remission.
[71]Nair, above n 21, at [19].
[72]Minhas v An Immigration Officer [2016] NZCA 435, [2016] NZAR 1419 at [35]–[36].
Accordingly, the interim order staying Mr Dong’s deportation pending the remission back to the relevant immigration officer is set aside.

Result

The appeal in CA369/2016 is allowed. The decision is to be remitted back to the Ministry of Business, Innovation and Employment to enable the immigration officer who had the conduct of the deportation process to comply with the obligation under s 177(5) as set out in this judgment.
The appeal in CA370/2016 is allowed in part. The interim order staying Mr Dong’s deportation pending the remission back to the relevant immigration officer is set aside.
The appeal in CA423/2016 is dismissed.
The Ministry of Business, Innovation and Employment must pay Mr Li costs for a standard appeal on a band A basis and usual disbursements. The Ministry of Business, Innovation and Employment must pay Messrs Fang and Dong together one set of costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Crown Law Office, Wellington for the Ministry of Business, Innovation and Employment and its Chief Executive
Amicus Law, Auckland for Mr Fang and Mr Dong
Kilian & Associates Limited, Albany for Mr Li

[2017] NZCA 190

19 May 2017