Huang v Minister of Immigration
[2006] NZCA 361
•18 December 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA236/06
BETWEENXIAO QIONG HUANG
First ApplicantANDCUI YONG MING
Second ApplicantANDJARVIS CUI
Third Applicant
ANDMINISTER OF IMMIGRATION
First RespondentANDTHE ATTORNEY GENERAL
Second Respondent
Hearing:4 December 2006
Court:O'Regan, Robertson and Ellen France JJ
Counsel:E Orlov (via video link) for Applicants
I C Carter and M G Coleman for Respondents
Judgment:18 December 2006 at 11 am
JUDGMENT OF THE COURT
The application for stay or interim relief pending the hearing of the applicants’ appeal is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] The applicants filed an application for a stay of a decision of the High Court in judicial review proceedings pending the hearing of an appeal in this Court. The High Court decision is Huang Xiao Qiong and Ors v Minister of Immigration & Anor HC AK CIV 2005-404-5202 29 September 2006 Asher J.
[2] It was common ground that there was no executory orders made in the High Court which were capable of being subjected to a stay. However we agreed to consider the application on the basis that it was an application for interim relief pending the hearing of an appeal in this Court in terms of r 12(3) of the Court of Appeal (Civil) Rules 2005.
[3] The application should have been made in the High Court: see the comments made by this Court in Salem Limited v Top End Homes Limited (2006) 18 PRNZ 122 at [15]. However, the merits have now been the subject of argument in this Court, and as this Court has jurisdiction we will determine the matter substantively.
[4] The decision against which the applicants plan to appeal was a decision of Asher J dismissing an application for judicial review by the applicants. The object of the High Court proceeding was to prevent Immigration New Zealand from putting into effect a removal order against the first applicant, Mrs Huang, and one of the matters raised in those proceedings was the impact of the removal of Mrs Huang on her six year old son, Jarvis Cui. The third appellant, Mr Cui, who is Mrs Huang’s husband and the father of Jarvis, has already been removed from New Zealand and returned to China.
Historical context
[5] Before turning to the merits of the application, we set out the relevant paragraphs of the judgment of Asher J which provide some historical context to the present litigation. In the introduction to his judgment, Asher J described the history as follows:
[1] Ms Huang Xiao Qiong (“Mrs Huang”) and Mr Cui Yong Ming (“Mr Cui”) are Chinese Nationals. Ms Huang arrived in New Zealand on 27 April 1996, Mr Cui on 10 December 1996. They were both granted short-term visitor permits on arrival, which in due course expired. In November 2000 they had a son, Jarvis Cui, and married.
[2] In the years that followed their arrival there was a lengthy and complex sequence of applications and appeals as they both sought to stay in New Zealand. Towards the end of 2005 removal orders were served on them both, Mr Cui on 12 September 2005 and Ms Huang on 19 September 2005. Mr Cui has been removed from New Zealand and is in China. Ms Huang is still living in Auckland. She has a much older child who remained in China when she came to New Zealand.
[3] Mr Cui’s removal to China, followed an unsuccessful attempt to obtain an interim injunction from this Court preventing such removal. That application was dismissed by Venning J in Qiong v Minister of Immigration (HC Auckland, CIV 2005-404-005202, 22 September 2005). Ms Huang has not been removed, and has stayed in New Zealand. She is looking after Jarvis Cui, pending the outcome of these substantive proceedings.
[4] Both Ms Huang and Mr Cui challenge the decisions to remove them from New Zealand. They do so in a statement of claim that alleges failure by the Authorities to take into account relevant considerations, unreasonableness and breach of natural justice. The statement of claim shows their five-year-old son, Jarvis Cui, as a third plaintiff. Claims are made of failure to accord him his statutory rights and entitlement, and to take into account his rights and New Zealand’s obligations under international law. There are also claims for breach of his rights as a child, failure to take into account relevant considerations, breach of natural justice and unreasonableness.
[6] Later, the Judge added:
[19] It is unnecessary to go into the detailed background to the removal of Ms Huang and Mr Cui. This background has been referred to in earlier Judgments (Qiong v Minister of Immigration). The factual position is relatively simple. Ms Huang and Mr Cui have been residing in New Zealand unlawfully for a number of years. Ms Huang did obtain a further visitor’s permit from the Removal Review Authority on 2 August 2000, on the sole ground that she was pregnant and that she should be allowed to have her baby in New Zealand before being required to return to China. That permit expired on 28 February 2001.
[20] In addition to that decision, there have been various decisions of the relevant Authorities, which have dealt with arguments raised by Ms Huang and Mr Cui, that they should not have to leave New Zealand. These can be summarised as follows:
a)Refugee Appeal No. 71222/99, Refugee Status Appeal Authority, 17 June 1999.
b)Huang Xiao Qiong, AB41156, Removal Review Authority, 2 August 2000.
c)Decision of the Minister of Immigration re waiver of sponsorship requirement under Humanitarian category, 29 May 2001.
d)Huang Client No. 14009444, Refugee Status Branch Decision, 18 February 2002.
e)Cui Client No. 15619189, Refugee Status Branch Decision, 18 February 2002.
f)YC and XH AAS44620 and AAS44621, Removal Review Authority, 27 June 2003.
g)Decision of the Associate Minister of Immigration re Removal Review Authority decision, 15 June 2004.
h)Humanitarian Questionnaire decision re Cui, 14 September 2005.
i)Humanitarian Questionnaire decision re Huang, 7 October 2005.
On all occasions other than the 2 August 2000 hearing, their arguments were unsuccessful.
[7] Further detail as to the historical context can be obtained from the judgment of Venning J in an earlier application by the applicants for judicial review, Qiong & Ors v Minister of Immigration & Anor HC AK CIV 2005-404-5202 22 September 2005. An appeal against the decision of Venning J was filed in this Court, but the appeal was subsequently abandoned.
Grounds for interim order
[8] Counsel for the applicants, Mr Orlov, supported the application on three grounds, namely:
(a)The appeal would be rendered nugatory if no order preventing the removal of Ms Huang from New Zealand pending the hearing of the appeal is made;
(b)The balance of convenience favoured the applicants;
(c)There was a issue of public interest involved, because the present case gives rise to similar issues to those before the High Court in Ding & Ors v Minister of Immigration and Qiu & Ors v Minister of Immigration HC AK CIV 2005-409-4900/CIV-2005-404-3211 15 August 2006 Baragwanath J. An appeal against that decision will be heard by this Court in June 2007. The Minister has agreed not to execute removal orders against the Dings and Qius pending the hearing of their appeal.
[9] We will consider each of these in turn.
Appeal rendered nugatory
[10] Mr Orlov said that if Mrs Huang was removed and had to return to China, her appeal rights would be rendered nugatory. He said she would not be able to pursue the appeal from China. If she took Jarvis Cui with her to China, he would not be able to pursue the appeal either (Asher J found in the High Court that the reality of the situation was that Jarvis Cui would return to China with his parents if they were removed from New Zealand: at [12]).
[11] We accept there may be practical difficulties for the applicants in pursuing their appeal if all of them are located in China, and that this is a consideration in favour of the applicants’ application. But we do not see those difficulties as decisive. Mrs Huang is being represented on a pro bono basis, a situation that will obtain whether she is in New Zealand or China. And the appeal focuses on legal issues arising from a judicial review proceeding in respect of which there should not be a requirement for significant input from the applicants.
Balance of convenience
[12] Mr Orlov submitted that the Crown would not be subjected to any inconvenience if interim relief were granted, whereas the position of the applicants would be substantially and adversely affected if they were removed. This was strongly disputed by counsel for the respondents, Mr Carter. He referred to the extensive history of the case, and noted in particular that the same applicants had an appeal before this Court over a year ago, which raised essentially the same issues, being those which had been dealt with by Venning J in his judgment. They chose not to pursue that appeal and it was eventually abandoned. He said it would now be wrong to allow them to achieve an extensive delay in the execution of removal orders pending a hearing of the present appeal raising the same issues.
[13] Mr Carter said that the position taken by the applicants appears to be that, because there is an appeal pending in Ding and Qiu, and Minister had agreed not to remove the Dings and the Qius pending the hearing of that appeal, all foreign nationals who are unlawfully in New Zealand, but who have a child who is a New Zealand citizen, would be entitled on a “me too” basis to also have their removal stayed pending the hearing of their appeals. He said that the potential inconvenience to the Crown was therefore significant because of the flow-on effects of any grant of a stay or interim relief in the present case.
[14] We accept that, if the only basis for the granting of a stay in the present case is equality of treatment with the Dings and the Qius, that would necessarily involve a similar stance being taken in relation to others in the same position. We are not satisfied that, when this aspect of the case is brought to account, the balance of convenience favours the applicants in the present case.
Public interest
[15] Mr Orlov highlighted the similarity of the position of the applicants with that of the appellants in the appeals against the decision of Baragwanath J in Ding and Qiu. In his judgment, Baragwanath J suggested the possibility that this Court would take an alternative approach to cases of this kind from that which had been exhibited in its recent decisions. The Ding and Qiu appeals are to be heard by a Full Court in June 2007. However, Baragwanath J made it clear that his suggestion was a departure from established case law in this Court, and, when he applied the orthodox position, he reached essentially the same view in Ding and Qiu as both Asher J and Venning J reached in relation to the present applicants.
[16] Mr Carter accepted the similarity of the position of the applicants with the Dings and the Qius, but said there was an important difference between the position of the present applicants and the Dings. Asher J had found in the High Court that Jarvis Cui would return to China with his parents if they were removed, so the possibility of separation of child from parents did not arise in the present case as it did in the Ding case. We accept that there is a distinction between the position of the present applicants and the Dings, though the position of the Qius cannot be so easily differentiated. We consider that the fair approach is to proceed on the basis that, if this Court reversed the decision of Baragwanath J in Ding and Qiu, that would have a material impact on the treatment of the present applicants as well.
[17] However, we are not satisfied that this factor demands that interim relief be provided in the present case, given the protracted history of the matter and the fact that an earlier appeal to this Court was not pursued and was ultimately abandoned. It would be wrong to seek to estimate the chances of success of the Dings and the Qius in their appeal, but it is clear from the judgment of Baragwanath J that, in order for them to succeed, there would need to be a significant change of approach by this Court. In those circumstances, it cannot be said that the merits of the applicants’ intended appeal (which involves essentially the same arguments as that of the Dings and the Qius) are so strong that this factor would, of itself, strongly favour the grant of interim relief pending the hearing of an appeal.
Overall interest of justice
[18] Looking at the matter in the round, and having regard to the ultimate test for applications such as this, namely the overall interests of justice, we are not satisfied that interim relief should be granted in the circumstances of this case. We take particular cognisance of the following factors:
(a) The very protracted history of the present applicants’ cases;
(b)The very clear finding of Asher J in the High Court against their judicial review application, which confirmed the earlier decision of Venning J in a similar application a year before;
(c)The failure of the applicants to pursue their appeal against Venning J’s decision a year ago; and
(d)The significant impact on the administration of the immigration policy of New Zealand if all illegal immigrants with New Zealand citizen children were effectively entitled to have removal processes stayed pending the hearing of the Ding and Qiu appeals.
[19] We therefore decline to grant a stay or interim relief in the present case.
[20] We make no award of costs.
Solicitors:
Y.T. Choi Lawyers, Auckland for Applicants
Crown Law Office, Wellington for Respondents
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