Hu v Immigration and Protection Tribunal
[2017] NZHC 41
•27 January 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-528 [2017] NZHC 41
BETWEEN JINGQING HU
First Applicant
GUIFENG LI Second Applicant
XINGZHI HU Third Applicant
XINZHI FAITH HU Fourth Applicant
SHUNZHI TIMOTHY HU Fifth Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
MINISTER OF IMMIGRATION Second Respondent
Hearing: 10 October 2016 Appearances:
R P Singh and H T Choudhury for Applicants
M J Hodge and M J Mortimer for RespondentsJudgment:
27 January 2017
JUDGMENT OF PALMER J
This judgment is delivered by me on 27 January 2017 at 10.00 am pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Legal Associates, Auckland
Meredith Connell, Auckland
HU v IMMIGRATION AND PROTECTION TRIBUNAL [2017] NZHC 41 [27 January 2017]
Summary
[1] Mr Jingquing Hu and Ms Guifeng Li face deportation to China. They have four children, three of whom are Chinese citizens and one who is a New Zealand citizen. The Immigration and Protection Tribunal decided that deportation of the eldest child to China, in her last year of secondary school in New Zealand, constituted an exceptional circumstance of a humanitarian nature that would make it unjust and unduly harsh for her and her family to be deported. The Tribunal considered this justified a temporary visa to allow the oldest child to complete her secondary education but did not justify further relief from deportation after that. Heath J granted leave to Mr Hu, Ms Li and their Chinese citizen children to challenge the decision on the ground it is unreasonable because of elements of inconsistency in the reasons given.
[2] The law of judicial review is bedevilled by whether and how “unreasonable” public decisions are allowed to be. I consider the Supreme Court’s established reformulation of the Edwards v Bairstow test of when a finding of fact constitutes an error of law offers a better account of unreasonableness in judicial review than the tautologous words used in Wednesbury. Where a decision is so insupportable or untenable that proper application of the law requires a different answer, it is unlawful because it is unreasonable. That may involve the adequacy of the evidential foundation of a decision or the chain of logical reasoning in the application of the law to the facts. Unremarkably, unreasonableness, also termed irrationality, is to be found in the reasoning supporting a public decision.
[3] But, whatever test of unreasonableness is used, the Tribunal’s conclusion here is supported by evidence and there is no defect in the chain of logical reasoning from the Tribunal’s factual findings or legal propositions to its conclusion. I decline the application.
Mr Hu, Ms Li and their children
[4] Mr Hu and Ms Li are citizens of the People’s Republic of China from Guangzhou who married there in 1997. Mr Hu’s parents and five siblings, and Ms Li’s mother and three siblings, still live in China. Their eldest child was born in
China in November 1998. Mr Hu was a general manager of a department store and
Ms Li was a manager of financial departments of businesses.
[5] Mr Hu and Ms Li visited New Zealand in September 2001. They returned in April 2003 when their child was four years old. Shortly afterwards they claimed they had separated and their marriage had been dissolved in China. Mr Hu and Ms Li each married a New Zealand citizen in July and November 2003 and were consequently granted work visas. They established a company to manage eight residential rental properties they acquired in Auckland. The company also offered building maintenance and renovation services. The properties were acquired with financial assistance of $400,000 from Mr Hu’s father in 2004. Their equity in their properties on the basis of the 2011 Government valuation was approximately
$800,000 though the value will have increased significantly since then. They sold properties to invest in a plastic recycling business.
[6] In New Zealand, Mr Hu and Ms Li had three more children. The second was born in August 2003, the third in 2006 and the fourth in 2009. The second became a New Zealand citizen but the other two did not, due to a subsequent change in New Zealand citizenship law. All four children have been privately educated.
[7] Mr Hu and Ms Li applied for residence in New Zealand in 2004 and 2005 respectively. Immigration New Zealand (INZ) concluded their marriages were not genuine. Further visa applications were declined and their status in New Zealand became unlawful in 2005. Both were served with removal orders in March 2009.
[8] Legal proceedings were settled in March 2010 on the basis that humanitarian interviews would be undertaken. The removal orders were cancelled and work visas granted in 2011. A September 2012 application for a Long Term Business Visa was declined in September 2014. A September 2014 application for an Entrepreneur Work Visa was declined in June 2015. During this time the three Chinese citizen children held student visas.
[9] On 1 October 2015 Mr Hu and Ms Li became eligible for deportation when their final work visas expired. They appealed on humanitarian grounds. The children are currently aged 18, 13, 10 and seven.
The law of humanitarian appeals
[10] Section 3(1) of the Immigration Act 2009 (the Act) provides “[t]he purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.” To achieve that purpose, s
3(2) establishes an immigration system that:
(d) provides a process for implementing specified immigration-related international obligations;
(e) includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that—
(i) enable immigration officers to gather information in relation to visa holders, employers, and education providers to determine compliance with obligations in respect of the system; and
(ii) prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security; and
(f) establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals;
[11] Part 6 of the Act governs deportation and pt 7 provides for appeals and reviews. Sections 206 to 208 of the Immigration Act 2009 (the Act) provides for appeals of deportation on humanitarian grounds. Section 207 states:
207 Grounds for determining humanitarian appeal
(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
(2) In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim made in accordance with section 208.
[12] In Ye v Minister of Immigration the Supreme Court clarified, in relation to the predecessor of s 207 (which is equally applicable here):1
(a) The requirement in for circumstances to be “exceptional” means they “must be well outside the normal run of circumstances found in overstayer cases generally” – they “do not have to be unique or very rare but they do have to be truly an exception rather than the rule”.
(b)If there are exceptional circumstances of a humanitarian nature then it is necessary to determine whether they make deportation unjust or unduly harsh.
(c) There may be some degree of harshness in removing an overstayer but to be unduly harsh it must “go beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system”.
(d)Parliament’s test contemplated overstayers being allowed to remain in New Zealand “if there were humanitarian circumstances of a sufficiently unusual kind that their remaining would not undermine the general importance of maintaining the integrity of the immigration system”.
[13] In Guo v Minister of Immigration the Supreme Court granted leave to appeal another Tribunal decision on a humanitarian appeal.2 Although its observations
1 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34] - [36].
2 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.
were necessarily made at a preliminary stage (and the appeal did not subsequently proceed),3 the Court expressed surprise at a Tribunal decision to deport children with resident status, who had been “well-settled” in New Zealand for more than 11 years.4
The Court suggested “[g]iven they have done nothing wrong it is distinctly arguable
that a comparatively low level of injustice and hardship would suffice to meet the s
207(1)(a) test and careful analysis of the basis of the decision was warranted.5 It further criticised:6
(a) The Tribunal’s failure explicitly to consider, in light of their absence of fault, whether it was just that the children face the hardship of deportation or whether such hardship was undue.
(b)The Tribunal focus on the hardship facing these children compared with anyone required to go to another country, rather than the proportionality of the hardship with the basis for their liability to deportation.
(c) The Tribunal’s focus on the family as a whole rather than on each
individual.
(d)The irrelevance of the parents’ fault to the decision to deport the children.
The challenge to the Tribunal’s decision
The Tribunal’s decision
[14] The Tribunal considered the primary issue in the appeals was whether the best interests of the four children gave rise to exceptional humanitarian circumstances and whether it would be unjust and unduly harsh to deport the family
having regard to Mr Hu’s and Ms Li’s history of immigration fraud.7
3 Wu & Anor v Minister of Immigration & Anor No 2 [2016] NZHC 3194 at [31].
4 At [21].
5 At [21].
6 At [22].
7 Re Li [2016] NZIPT 502519-20 at [3].
[15] The Tribunal:
(a) rejected the submission that return to China would lead the family into poverty, or would not be able to adequately financially provide for the children’s basic needs, on the basis of the evidence about the family’s resources;8
(b)was not persuaded there was any compelling reason (including their need to learn Mandarin) why the two youngest children could not be expected to accompany their parents to China;9
(c) rejected, as “patently insincere”, the parents’ claim that if they have to leave New Zealand they would abandon their second child, a New Zealand citizen, into Child Youth and Family care and considered there was no evidence he could not attend a public, or private English, school in China;10
(d)acknowledged that it was in the best interests of the eldest child, in her last year of secondary school, to stay at her current school but that it would not then be impossible for her to overcome the language barrier living in China.11
[16] In its conclusion on the children’s best interests, the Tribunal said:
[73] The primary issue from the children’s perspective is that they have settled happy lives in this country and life in China is unfamiliar. Going to live in China represents a major emotional wrench in that they will have to give up their school, friends and current lifestyle and will have to adapt to a very different culture and lifestyle. They will also have to learn Mandarin so that the progress of their education will be disrupted, although not necessarily compromised over the long term, and language acquisition will have its own advantages. If educated in the public system in China they will also have to adapt to a different style of education.
[74] For the children the loss of their settled, familiar lives is a significant hardship.
8 At [45] and [70].
9 At [50].
10 At [59] and [61].
11 At [68]-[69].
[75] The Tribunal has indicated that, considered in isolation, it does not consider that the hardship involved for the two younger children reaches the level of exceptional humanitarian circumstances. They will be with their parents who are their primary source of security and who are well-placed to support the children in adapting to a new environment.
[76] The 12-year-old son may face a greater challenge, especially with the language and because he is a New Zealand citizen enrolling him in a state school is not straight forward. The older daughter has now almost completed her secondary education so it would be difficult for her to make an immediate transition to senior high school in China. It is very much in her best interests that she is able to complete the school-leaving qualification she has been working towards over the last three years.
[77] Considering the children’s circumstances overall, the Tribunal finds that it is in their best interests to maintain their settled life in this country. The children’s attachment to their New Zealand lifestyle, their lack of familiarity with Chinese society, the challenges, especially for the two older children in adapting to a foreign language and education system, and the significant distress they will experience at the loss of their settled life in this country, amounts to exceptional humanitarian circumstances.
[17] The Tribunal then considered the fraudulent conduct of the parents and stated:
[86] The appellant’s [sic] fraudulent conduct must be weighed against the exceptional humanitarian circumstances of the children, who of course are entirely innocent.
[87] As discussed, it is the two older children who have the stronger humanitarian grounds and most particularly the older daughter. The Tribunal is satisfied that in her case it would be unjust and unduly harsh for her to be deported given the critical stage she is at in her secondary schooling. However, considering the history and the appellants’ ability to provide adequately for their children in China, including their New Zealand citizen son’s education, the Tribunal does not consider that a grant of residence to the appellants and their three children is justified.
[88] It is however appropriate to grant temporary visas to enable the older daughter to complete secondary school. This will also provide an opportunity for the appellants to organise their departure, including realising some or all of their assets, and putting in place arrangements for the family’s return to China, including exploring housing and schooling options.
[89] The Tribunal therefore finds that it would be unjust or unduly harsh to deport the appellants and their three children at this time.
[18] Finally, under the heading “Public Interest”, the Tribunal observed the parents and children had an acceptable standard of health. It observed, while they have no criminal convictions, the parents’ sham marriages give rise to serious character issues. However, the Tribunal stated it was only proposing to grant
temporary visas, which “is in the interests of the children, most especially the older daughter”.12
[19] On this basis the Tribunal found that:13
(a) The appellants and their children have exceptional circumstances of a humanitarian nature which would make it unjust or unduly harsh for them to be deported from New Zealand; and
(b)it would not, in all the circumstances, be contrary to the public interest for the family to remain in New Zealand on a temporary basis.
[20] The Tribunal granted temporary visas until 10 December 2016. Since then, they have remained in New Zealand under further interim visas pending the Court’s judgment in these proceedings.
The challenge
[21] Heath J granted leave to Mr Hu and Ms Li and their three Chinese citizen children to challenge the Tribunal’s decision by judicial review.14 He considered there was an arguable case that “the reasoning of the Tribunal contains findings that might, on full evaluation, be inconsistent in nature and give rise to the possibility that the decision is ‘unreasonable’ in the administrative law sense”.15 He noted the Tribunal determined there were exceptional circumstances of a humanitarian nature that would make deportation unjust or unduly harsh but that, except to the extent of the period of the temporary visas, this would not in all the circumstances be contrary to the public interest to allow the family to remain in New Zealand.16 He noted the Tribunal did not say expressly why it would be contrary to the public interest for the
applicants to remain in New Zealand or why it would be adverse for them to stay
12 At [92].
13 At [90]-[92] and [94].
14 Hu & Ors v Immigration and Protection Tribunal & Anor [2016] NZHC 1661.
15 At [37].
16 At [45].
beyond the period identified in the temporary visas. He considered the challenge should be explored in light of the Supreme Court’s decision in Guo.17
The law of unreasonableness
[22] The law of judicial review enables challenges to public decisions largely on procedural grounds. It is a primary means by which the judiciary supervises the legality of decision-making by the executive branch of government and other public institutions and upholds the rule of law.
[23] Occasionally, however, courts also sustain substantive challenges to the merits of decisions by way of judicial review. The leading case to which reference is made, however often it is disparaged, is Associated Provincial Picture Houses, Limited v Wednesbury Corporation.18 There Lord Greene MR, for the English Court of Appeal, explained that a statutory discretion conferred upon a local authority “must be exercised reasonably” and that “unreasonable” is often used “in a rather comprehensive sense”:19
It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably”. Similarly there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation20 gave the example of the red haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.
[24] However, Lord Greene rejected counsel’s challenge on the ground of unreasonableness in Wednesbury because the consideration under challenge was relevant to the decision. He stated, repeatedly, that accepting unreasonableness as a
ground of challenge in that circumstance would wrongly set up the court, rather than
17 At [45].
18 Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223.
19 At 229.
20 Short v Poole Corporation [1926] Ch. 66, 90, 91.
the local authority, as the decision-maker.21 It was only as a rare exception that he acknowledged that, in some circumstances, unreasonableness could be a ground of challenge:22
It is clear that the local authority are entrusted by Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted to deal with. The subject-matter with which the condition deals is one relevant for its consideration. They have considered it and come to a decision upon it. It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind.
[25] Lord Greene summarised the principle in these terms:23
The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.
[26] The phrases to which I have added italics in the above two extracts have come to be known as “Wednesbury unreasonableness”. This concept has often been criticised by academic commentators and by courts.24 This may be particularly because the concept could be deployed to allow a court to overturn a decision with which it simply disagrees. That is not often seen as a legitimate judicial function on judicial review in New Zealand. Ironically, this was Lord Greene’s expressed concern. But courts are reluctant to dispense with the potential, exceptional, use of
unreasonableness without having something more satisfactory with which to replace
it. No alternative has sustained sufficient attraction to recommend itself.
21 At 230, 231 and 233.
22 At 230 (emphasis added).
23 At 233-234 (emphasis added).
24 See Hanna Wilberg and Mark Elliott (eds) The Scope and Intensity of Substantive Review:
Traversing Taggart’s Rainbow (Hart Publishing, Oxford, 2015).
[27] Defining unreasonableness with reference to unreasonableness is surely tautological.25 Lord Greene’s intention appears simply to have been to preserve the rare possibility of successful challenge where the substance of a public decision is egregiously unreasonable. But, as Lord Cooke suggested it would in R (Daly) v Secretary of State for the Home Department, I agree the day has come that it is more widely recognised that Wednesbury was “an unfortunately retrogressive decision in
English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation”.26 The problem is that little progress has been made in unpacking what unreasonableness means.
[28] The nature, rarity and high threshold for the success of unreasonableness as a ground of judicial review is reminiscent of, and conceptually related to, the nature, rarity and high threshold for the success of a factual determination constituting an error of law. In Edwards v Bairstow, a few years after Wednesbury, Lord Radcliffe identified three rare states of affairs which would constitute errors of law: where “there is no evidence to support the determination” or “the evidence is inconsistent with and contradictory of the determination” or “the true and only reasonable
conclusion contradicts the determination”.27 In Bryson v Three Foot Six Ltd, the
New Zealand Supreme Court explained that these were circumstances where:28
… an ultimate conclusion of a fact-finding body can sometimes be so insupportable
– so clearly untenable – as to amount to an error of law, because proper application of the law requires a different answer.
25 Harry Woolf, Jeffrey Jowell, A P Sueur, Catherine Donnelly, Ivan Hare De Smith’s Judicial
Review (7th ed, London, Sweet & Maxwell, 2013) at [11-019] [De Smith’s Judicial Review].
26 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (HL) at 549.
27 Edwards v Bairstow [1956] AC 14 (HL) at 36. The Supreme Court noted in Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at footnote 26, Lord Radcliffe was adopting dicta of the Lord President (Normand) in Inland Revenue v Fraser 1942 SC 493, 497 and Lord
Cooper in Inland Revenue Commissioners v Toll Property Co Ltd 1952 SC 387, 393. To that
can be added that Lord Radcliffe also relied on a statement in Cooper v Stubbs by Warrington LJ in [1925] 2 KB 753 at 768 including the phrase “a conclusion which on the evidence no reasonable person could arrive at”.
28 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26]. The quote is from
the Supreme Court’s subsequent application of the principle in Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [52]. The sentence in Bryson contained a semi-colon rather than the word “because”, which was inserted in Vodafone New Zealand Ltd.
[29] The Court made it clear this is a “very high hurdle”.29 But it is well established and conceptually coherent. I consider the Supreme Court’s reformulation of Edwards v Bairstow offers a better account of unreasonableness constituting illegality in judicial review than the circular words used in Wednesbury. Where a decision is so insupportable or untenable that proper application of the law requires a different answer, it is unlawful because it is unreasonable.
[30] Lord Radcliffe’s three scenarios, encapsulated by the Supreme Court as an insupportable or untenable ultimate conclusion, also assist in identifying what constitutes a relatively narrow but usable concept of unreasonableness. A decision may be unreasonable if it is not supported by any evidence, or if the evidence is inconsistent with or contradictory of it, or if the only reasonable conclusion contradicts the determination. The first two of these involve the adequacy of the evidential foundation of the decision. The last involves the chain of logical reasoning in the application of the law to the facts: if there is a material disconnect in the chain of logic from a fact or a legal proposition to a conclusion, a decision may be unreasonable and therefore unlawful.
[31] In these rare scenarios, unsurprisingly, unreasonableness can be found in the reasoning. That is consistent with the alternative term sometimes used, “irrationality”, following Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service.30 The New Zealand Court of Appeal has followed Lord Diplock’s definition of that in so far as it extends to “a decision which is so outrageous in its defiance of logic”.31 This sense of unreasonableness is relatively unremarkable. De Smith’s text treats “irrational decisions, for instance those that are based upon the lack of ostensible logic or inadequate evidence” in the general category of “unreasonable process” rather than the more controversial categories of “violations of common law rights or constitutional principles” or “oppressive decisions”.32 I do not claim this is an all-encompassing conception of the meaning
unreasonableness. There may also be others, wider than this relatively narrow
29 At [27].
30 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 364 at 410.
31 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545 and 552.
32 De Smith’s Judicial Review, above n 25, at [11-028]-[11-038].
conception. But it does provide some operational content to what is otherwise relatively inchoate, it is potentially applicable to public decisions generically and it is a legitimate part of the judicial function in upholding the rule of law.
[32] Finally, as I have noted elsewhere, common law courts, including in New Zealand, apply variable, variegated or sliding standards of review depending on the context, and it is desirable to engage more openly with what contextual factors matter.33 Labels such as “hard look” and “anxious scrutiny” may not be a particularly helpful guide to a court’s approach. But there is no doubt the New Zealand courts will focus very carefully on cases where human rights are at stake. That is so in immigration cases including those involving humanitarian appeals.
Was the Tribunal’s decision unreasonable?
[33] In his oral submissions on behalf of the applicants, Mr Singh emphasised the points noted by Heath J. He submitted that the Tribunal’s determination that temporary visas be granted was unreasonable on the basis that it was inconsistent with the primary findings it had made. He submitted it was unreasonable for the Tribunal to find the applicants have ongoing exceptional circumstances of humanitarian nature but that it was unjust or unduly harsh for them to be deported at this time. Mr Singh favoured a “hard-look” or “anxious scrutiny” intensity of review because the case involves the right of a child to be looked after by his natural parents and the right to family unity. But he submitted that, even on a Wednesbury basis, the decision was unreasonable: that no reasonable decision-maker would grant only temporary visas after finding it is in the children’s best interests to remain in New Zealand.
[34] It follows from what I have just said that I agree with Mr Singh’s submission for the applicants that it would be unreasonable for a decision-maker not to base its determination on its own findings of fact. However, I do not agree with Mr Singh
that that is what the Tribunal did here. The Tribunal made three key sets of findings:
33 Deliu v Connell [2016] NZHC 361, (2016) NZAR 475 at [6]-[8].
(a) First, it found that, “considered in isolation”, the circumstances of the two younger children did not amount to exceptional humanitarian circumstances.34 It found the second child, “may face a greater challenge” and that it was “very much” in the best interests of the eldest child to complete her school leaving qualification.35 The Tribunal’s final generic statement in paragraph [77] about the children’s best interests is confusing. But I consider it must be read in the context of those immediately preceding findings. The Tribunal’s finding about exceptional humanitarian circumstances was tied directly to the eldest child’s completion of secondary school.
(b)Second, referring back to the “stronger humanitarian grounds” of the two older children “and most particularly the older daughter” the Tribunal was satisfied it would be unjust and unduly harsh for her to be deported “given the critical stage she is at in her secondary schooling”.36 Given the Tribunal’s reference to the parents’ ability to
provide adequately for their children in China,37 it is clear it did not
consider that applied to the other three children.
(c) Third, it was not contrary to the public interest for them all to remain in New Zealand for the period it would take for the older daughter to complete her secondary schooling.
[35] The Tribunal expressed its conclusion about exceptional humanitarian circumstances with unfortunate ambiguity. And the Tribunal’s reasoning under the heading “public interest” is sparse. It is understandable that Heath J considered it required further scrutiny. But I consider it is tolerably clear that the Tribunal was satisfied that:
(a) the oldest child’s stage of education, in her last year of secondary
school in New Zealand, constituted the exceptional circumstance of a
34 Re Li, above n 7, at [75].
35 At [76].
36 At [87].
37 At [87].
humanitarian nature that would make it unjust and unduly harsh for her and her family to be deported; and
(b)that it would not be contrary to the public interest for them to remain while that circumstance continued to exist, but no longer.
[36] As such I do not consider the Tribunal’s reasoning suffers from any of the defects that would put it at risk of a finding of being unreasonable. Its conclusion about each of the children is supported by evidence. The most marginal call seems to have been its assessment of the circumstances of the second child, the New Zealand citizen who has just finished intermediate school. The Tribunal’s determination in this regard is based on its assessment that the parents have sufficient resources to provide adequately for their children, including the second child’s education, in China. The evidence supports, and is not inconsistent with, or contradictory of, that. I do not consider there is a defect in the chain of logical reasoning from the Tribunal’s factual findings or legal propositions to its conclusion that would render its conclusion unreasonable or irrational at law.
[37] I should note that my conclusion would not be different if I were to apply some conventional version of Wednesbury unreasonableness. And neither do I consider the Supreme Court’s guidance in Ye or Guo makes any difference to that conclusion. The Court’s surprise at deporting well-settled innocent resident children in Guo is the most relevant aspect. But in Guo the Tribunal there considered all the children subject to exceptional humanitarian circumstances. And the family there was considerably less well-off than the family here, meaning a return to China was
likely to result in a much lower standard of living for the children.38 The Tribunal
here carefully considered the interests of each of the children, who were on student rather than resident visas, acknowledged they were not at fault and, with one exception, did not consider their circumstances to be of an exceptional humanitarian nature. It identified the one factor it considered did constitute such circumstances and that made deportation unjust and unduly harsh – the oldest child’s secondary
schooling – and made a decision consistent with that.
38 Guo v Minister of Immigration [2013] NZIPR 600006-7, 600029, 600049 at [32].
[38] Given the parents’ resources here, I consider it was open to the Tribunal to consider deportation when the eldest’s schooling factor is no longer present would be not be unjust or go beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system. I do not regard the Tribunal’s decision as unreasonable, however the meaning of that is conceived.
Relief
[39] I dismiss the application for judicial review. If the parties cannot agree on costs they have leave to file submissions within 20 working days.
Palmer J
39
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