Guo v Minister of Immigration
[2014] NZCA 513
•24 October 2014 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA263/2014 [2014] NZCA 513 |
| BETWEEN | JIANYONG GUO MEIHUA HONG JIAXI GUO JIAMING GUO |
| AND | MINISTER OF IMMIGRATION |
| Hearing: | 25 August 2014 |
Court: | O’Regan P, Ellen France and Miller JJ |
Counsel: | R M Dillon for Applicants |
Judgment: | 24 October 2014 at 9.30 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal to the High Court against the decision of the Immigration and Protection Tribunal is dismissed.
BWe make no order for costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
Introduction
This is an application for leave to appeal to the High Court on questions of law against a decision of the Immigration and Protection Tribunal (the Tribunal). The Tribunal dismissed the appeals of the applicants against deportation.[1] An application to the High Court for leave to appeal was dismissed.[2] This application for leave is made under s 245(1) of the Immigration Act 2009 (the 2009 Act).
[1]Guo v Minister of Immigration [2013] NZIPT 600006 [Tribunal decision].
[2]Guo v Immigration and Protection Tribunal [2014] NZHC 804 [High Court decision].
The second applicant, Mrs Hong, is no longer in New Zealand and is barred from re-entering the country.[3] The Tribunal’s decision was reissued, deeming Mrs Hong’s appeal withdrawn as required by statute,[4] when it became aware of this development. She remained as an applicant for leave in both the High Court and this Court, however.
Background
[3]Mrs Hong was served with a New Zealand deportation order at Shanghai Airport on 15 July 2013; Immigration Act 2009 [2009 Act], s 179(1).
[4]2009 Act, s 239(1)(a).
In March 2002, Mr Guo and Mrs Hong, who are Chinese citizens, arrived in New Zealand with their daughter Jiaxi Guo (Cici).
In June 2006, Mr Guo made an application for residency, listing Mrs Hong, Jiaxi and the couple’s son, Jiaming (William), as secondary applicants. All applicants were granted residency in September 2006. Jiaming was born in New Zealand, but is not a New Zealand citizen. The couple’s second child, Ellen, is a New Zealand citizen by birth and is not therefore subject to any deportation process.
In December 2008, Mr Guo was convicted of importing a large amount of a class C controlled drug (pseudoephedrine) and possession of the same drug for supply. He was sentenced to a term of imprisonment of five years and three months. His appeal against those convictions was dismissed by this Court.[5]
[5]R v Guo [2009] NZCA 612.
After his conviction Mr Guo was served with a deportation order under s 91(1)(a) of the Immigration Act 1987 (the 1987 Act). He appealed against the deportation order on humanitarian grounds. His appeal was dismissed by the Tribunal but as a result of a successful judicial review application, the matter was remitted to the Tribunal for rehearing. The decision subject to Mr Guo’s intended appeal was therefore a rehearing of his appeal against the deportation order on humanitarian grounds.[6]
[6]Section 105 of the Immigration Act 1987 [1987 Act] provides that the Tribunal may quash a deportation order if deportation would be “unjust” or “unduly harsh” and New Zealand’s public interest would not be adversely affected by the quashing of the order.
The other applicants were served with deportation liability notices under s 158(1)(b)(ii) of the 2009 Act in 2011. The ground on which these were issued was that their residence visas had been granted on the basis of a visa (Mr Guo’s) procured through false or misleading representation, or failure to later disclose relevant information (Mr Guo’s involvement in the illicit drug trade). The applicants other than Mr Guo were entitled to appeal both on the facts and on humanitarian grounds under ss 201(1)(a) and 202(c) and s 207 of the 2009 Act respectively.[7]
[7]Section 207 of the 2009 Act is similar to s 105 of the 1987 Act but adds to the “unduly harsh” or “unjust” criteria a requirement that the undue harshness or injustice must arise from “exceptional circumstances of a humanitarian nature”.
The rehearing of Mr Guo’s humanitarian appeal under s 105 of the 1987 Act was heard together with the general appeals of Mrs Hong, Jiaxi and Jiaming under the 2009 Act.
Tribunal decision
The Tribunal dismissed all the appeals. It found as follows:
(a)The seriousness of Mr Guo’s offending outweighed the compassionate factors in favour of quashing the order, notwithstanding his low risk of reoffending. Deportation was harsh, but not unduly harsh or unjust.[8] It was not necessary to consider the question of whether it would be against the public interest for Mr Guo to remain in New Zealand.[9]
(b)Jiaming and Jiaxi had failed to show on appeal on the facts that their visas were not granted though a false or misleading representation or concealment of relevant information.[10] Their innocence of their father’s concealment of relevant information, their father’s privilege against self-incrimination and the presumption of innocence were all irrelevant to the determination of the appeal.[11]
(c)Jiaming and Jiaxi had failed to show in their s 207 humanitarian appeals that, although they were well-settled and wholly innocent of their father’s concealment of relevant information, their deportation was unjust or unduly harsh.[12]
(d)The practical consequence that the departure of all Ellen’s family members meant she would have to leave New Zealand, where she had a right to live, was specifically weighed by the Tribunal, but not found to alter the result.[13]
High Court leave decision
[8]Tribunal decision, above n 1, at [82]–[84].
[9]At [84].
[10]At [115].
[11]At [93]–[114].
[12]At [139]–[156].
[13]At [157]–[163].
All the applicants applied under s 245 of the 2009 Act for leave to appeal against the Tribunal’s decision to the High Court.[14] Gendall J dismissed their applications.[15] We will address his reasoning when considering the matters raised by the applicants as possible questions of law on which leave is sought.
Section 245 of the 2009 Act
[14]They also sought leave to commence judicial review proceedings but no longer pursue this.
[15]High Court decision, above n 2.
Section 245(1) provides for an appeal to the High Court (with leave) where an affected person “is dissatisfied with any determination of the Tribunal … as being erroneous in point of law”. So the right of appeal is limited to questions of law. Leave may be given by the High Court or if it refuses leave (as happened in the present case) by this Court. Section 245(3) provides that in determining whether to grant leave, the relevant court 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. As noted by this Court in Minister of Immigration v Jooste, the test is similar to that applying to second appeals to this Court under s 67 of the Judicature Act 1908,[16] though the test is being applied in the present context to a first appeal against a decision of the Tribunal.[17]
Proposed questions of law on which leave is sought
[16]Waller v Hider [1998] 1 NZLR 412 (CA).
[17]Minister of Immigration v Jooste [2014] NZCA 23 at [5].
We set out in the paragraphs that follow the matters raised as questions of law that are said to arise from the Tribunal’s decision and which the applicants wish to pursue on appeal to the High Court and our evaluation of them.
Whether s 158 and/or s 202 of the 2009 Act amount to discrimination in breach of ss 20L and 21 of the Human Rights Act 1993 as read in light of s 19 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights)
The Tribunal accepted the children’s deportation resulted from the default of their father, of which they were innocent, but still found deportation was not unjust or unduly harsh. The applicants argue that ss 158 and 202 of the 2009 Act, allowing deportation in these circumstances, and the Tribunal’s interpretation of s 207 when determining it was not unjust or unduly harsh for Jiaxi and Jiaming to be deported, were discriminatory because Jiaxi and Jiaming were liable to be deported on the basis of their father’s conduct, of which they were innocent. Gendall J found that the ground of appeal was unarguable because the applicants failed to identify how they were being treated differently from others in comparable circumstances on the basis of any of the prohibited grounds of discrimination (family status, ethnic or national origins or age). The Judge observed the essence of discrimination – being the different treatment of people in comparable circumstances – was not made out in the present case.[18] We agree. As Ms Griffin for the Minister pointed out, the express purpose of the 2009 Act is that persons whose residence visas are obtained by fraud, misleading information or concealment become liable for deportation, even if personally innocent of such conduct.
Whether the Tribunal erred in failing to give sufficient consideration to the presumption of innocence at common law and under the Bill of Rights in relation to Mrs Hong and the children
[18]At [65].
Gendall J rejected the applicants’ submission that the Tribunal was required to consider the presumption of innocence under s 25(c) of the Bill of Rights in relation to Jiaxi and Jiaming, holding that s 25(c) expressly applies only to a person charged with a criminal offence and has no application in the context of immigration proceedings.[19] In any event, assuming that the provision did apply, he found the innocence of the children of any complicity with their father’s offending was clearly given significant weight in the Tribunal’s conclusion on the humanitarian appeal that exceptional circumstances of a humanitarian nature existed, but the factor was properly not treated as decisive.[20] We agree with the Judge on both counts. No issue requiring further review by the High Court arises.
Whether the Tribunal erred in failing to give sufficient consideration to the prohibition against double jeopardy in s 26 of the Bill of Rights in relation to Mr Guo
[19]At [67].
[20]At [67].
Gendall J rejected this submission, which had not been raised before the Tribunal.[21] The argument was that Mr Guo had served a prison sentence for his drug offending and deportation was a further punishment for the same offending. Counsel for the applicants, Mr Dillon, vehemently pursued this ground before us. But simply stating that double jeopardy arises does not make it true. The reality is that deportation is not a penalty for the offending but a consequence of non-compliance with the conditions on which residency was granted. As Ms Griffin put it, deportation involves the interest of the state in the removal of migrants regarded as undesirable, which is separate from the criminal law. This is not an arguable point in any circumstances and certainly not in relation to an appeal against a decision limited to humanitarian grounds.
Whether there is any injustice in relation to the affairs of the applicants sufficient to fulfil the “unjust or unduly harsh” criteria
[21]At [68]–[71].
The applicants submit the Tribunal misdirected itself by reading the standard of “unjust or unduly harsh” in s 105 of the 1987 Act (in respect of Mr Guo) and s 207 of the 2009 Act (in respect of the others) by failing to consider “injustice” as an independent test. Gendall J rejected the applicants’ submission that the Tribunal was wrong to conclude deportation would not involve sufficient injustice in relation to the affairs of the applicants to fulfil the criteria “unjust or unduly harsh” due to a misinterpretation of the “unjust and unduly harsh” test.[22] The applicants seek re‑evaluation of the matters considered by the Tribunal, rather than identifying an error of law. We agree with Gendall J that there is no arguable error of law in this respect.
Whether the Tribunal gave proper, genuine and adequate consideration to the best interests of as well as the rights possessed by Ellen, by virtue of the fact she is a New Zealand citizen
[22]At [72]–[77].
The applicants submit the Tribunal did not do this, contending that the consequences of the deportation of the rest of the family will be dire for Ellen. The applicants also submit the Tribunal failed to consider the rights of the family unit to protection under international law and Ellen’s rights under the Bill of Rights and at international law to freedom of association, movement, to be free from discrimination and to justice. The applicants note that New Zealand has particular commitments to ensure the rights of a child are a primary consideration and that these rights are “prejudiced” by the Tribunal’s decision. Gendall J said adequate weight was given to Ellen’s citizenship when determining whether it was unjust or unduly harsh to deport the family.[23] He found the Tribunal carefully weighed factors favouring the children remaining in New Zealand and devoted specific attention to the interests of Ellen as a New Zealand citizen and her relationship with the rest of the family. We agree. No arguable error of law arises.
Whether the Tribunal made an error of law in assessing the interests of Ellen against the assumption that her mother could not return to New Zealand instead of according to whether it would be in the best interests of Ellen that her family, including her mother, be allowed to live in New Zealand
[23]At [78]–[80].
The applicants submit the Tribunal erred in not following the Supreme Court decision in Ye v Minister of Immigration.[24] In that case, the Supreme Court said the best interests of a child ought to be considered without assuming the child’s mother will be removed from New Zealand, that is the issue should be whether the mother will be removed in light of the New Zealand citizen child’s best interests.[25] The applicants say the Tribunal failed to do this. Gendall J did not accept this.[26] Ms Griffin said that Ye is distinguishable because Mrs Hong is not under threat of deportation, as was the case in Ye, but rather is prohibited from entering New Zealand. We agree. We see no arguable error of law in this regard.
Whether the Tribunal ought to have afforded Jiaming greater consideration on the basis of his status as a permanent resident in New Zealand
[24]Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24]–[25].
[25]At [61].
[26]At [83].
In fact, the Tribunal was clearly well aware of Jiaming’s close association with New Zealand and we see no room for any “greater consideration”. In the context of an appeal on a question of law, we can see no valid point arising in this context.
Whether the Tribunal gave proper and sufficient consideration to the expert evidence of Dr Anne-Marie Brady
Dr Brady testified as to a comparison of the situation for children in New Zealand with those in China. She also gave evidence to the effect that if Ellen returns with the family to China, she will have to apply for residence (or else give up her New Zealand citizenship) and the application process will involve discrimination. Gendall J rejected the applicants’ submission that the Tribunal did not give adequate consideration to Dr Brady’s evidence.[27] It is apparent from the Tribunal’s decision that it extensively discussed Dr Brady’s evidence and relied on parts of it, with some qualifications. The Tribunal noted that Dr Brady had not interviewed the Guo family members, nor did she have specialist knowledge of Mr Guo and Mrs Hong’s home cities.[28] Gendall J was satisfied it was open to the Tribunal to prefer the report that had been provided to the Tribunal on behalf of both parties, the integrity of which was not challenged in any real way, over the evidence of Dr Brady. In any event, as Ms Griffin pointed out, the report was relied on in respect of demonstrating exceptional humanitarian circumstances, and the applicants were successful in establishing that such circumstances existed. We see no error in approach on the part of the Tribunal and certainly no error of law of the kind for which an appeal to the High Court could be permitted. An associated point raised by the applicants was whether the Tribunal was required to put to Dr Brady the contrary information on which it intended to rely. Dr Brady was cross‑examined and also questioned extensively by members of the Tribunal. We see no arguable point that the Tribunal had any further obligation to put matters to her for comment.
Whether the Tribunal was required to explain why deportation of the entire family was not “unjust”. And whether the Tribunal gave proper and adequate reasons for finding that it would not be unjust or unduly harsh for the children to be deported having already determined there were exceptional circumstances of a humanitarian nature in respect of them
[27]At [88]–[92].
[28]High Court decision, above n 2, at [90].
We agree with Gendall J that the Tribunal provided a considered, fully‑reasoned and detailed decision.[29] There was no failure to explain its decision and no failure to give reasons. No question of law arises.
Whether any or all of ss 245, 247 and 249 of the 2009 Act are an unlawful impediment to the right of judicial review, either at common law or pursuant to s 27 of the Bill of Rights
[29]At [93]–[95].
We agree with Ms Griffin that the validity of the provisions is not an appealable “error of law”, especially in light of the applicants’ abandonment of their judicial review arguments.
Result
We conclude that, applying the test set out in s 245 of the 2009 Act, there is no proper basis for granting leave to appeal to the High Court on any of the matters raised by the applicants. We do not accept Mr Dillon’s submission that the matters raised are of constitutional significance or that they affect the approach the Tribunal takes to all cases of this kind. The application for leave to appeal to the High Court is therefore dismissed.
Costs
No application was made for costs and no order is made.
Solicitors:
Queen City Law, Auckland for Applicants
Crown Law Office, Wellington for Respondent
9
2
1