Huang v Minister of Immigration
[2020] NZHC 956
•11 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2612
[2020] NZHC 956
UNDER section 245 of the Immigration Act 2009 IN THE MATTER
of an appeal against a decision of the Immigration and Protection Tribunal
BETWEEN
QUANFU HUANG
Appellant
AND
THE MINISTER OF IMMIGRATION
Respondent
Hearing: 30 April 2020 Appearances:
S Dalley and P Sundar for the Appellant
A Williams and E Cameron for the Respondent
Judgment:
11 May 2020
JUDGMENT OF GAULT J
This judgment was delivered by me on 11 May 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr S Dalley and Ms P Sundar, Ryden and Associates, Auckland Ms A Williams and Ms E Cameron, Crown Law, Wellington
HUANG v THE MINISTER OF IMMIGRATION [2020] NZHC 956 [11 May 2020]
[1] Mr Huang seeks leave to appeal against a decision of the Immigration and Protection Tribunal (the Tribunal) dated 4 November 2019 dismissing his appeal against liability for deportation,1 which arose following his conviction and sentence of seven years’ imprisonment on one charge of possession of a class B drug for supply.
[2]Given the COVID-19 situation, the hearing took place by telephone.
Factual background
[3] Mr Huang is a citizen of China. He was born in Fujian province in 1984. After arriving in New Zealand in late 2007, he was granted a resident visa on 27 August 2008. His wife, also originally from China, was already a New Zealand resident. They have three children, born in New Zealand in 2007, 2010 and 2013.
[4] From 2008 all family members except the second child have spent significant amounts of time in China as well as New Zealand. The family were often apart. Mr Huang spent substantially more time in China than his wife. Two of their three children spent a substantial part of their early childhood living with their paternal grandparents in China. In May 2015 Mr Huang moved out of the family home due to relationship difficulties.
[5] In May 2016 Mr Huang was arrested during a Police investigation into the illegal importation of 200 kilograms of ephedrine into New Zealand. He eventually pleaded guilty to one charge of possession of a class B drug for supply, and on 29 September 2017 he was convicted and sentenced to seven years’ imprisonment.
[6] As a result of his conviction and sentence, Mr Huang became liable for deportation under s 161(1)(c) of the Immigration Act 2009 (the Act). On 22 March 2018 the Minister signed a deportation liability notice, which was served on Mr Huang on 23 April 2018. On 11 May 2018 Mr Huang lodged a humanitarian appeal to the Tribunal against his deportation liability.2
1 Huang v Minister of Immigration [2019] NZIPT 600505.
2 Section 206(1)(c) of the Act.
Tribunal decision
[7]The Tribunal’s decision of 4 November 2019 determined that:
(a)there were exceptional circumstances of a humanitarian nature present in the case predominantly relating to Mr Huang’s wife and their children; but
(b)balancing Mr Huang’s offending against those exceptional humanitarian circumstances, it was not unjust or unduly harsh for him to be deported.
[8] Mr Huang’s issues with the Tribunal decision relate to this latter balancing exercise.
Leave threshold
[9] Under s 245 of the Act, appeals to the High Court are limited to questions of law. They may only be brought with leave. In determining whether to grant leave, the 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.3
[10] In Machida v Chief Executive of Immigration New Zealand, the Court of Appeal said:4
[8] In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:
(a)has importance extending beyond the particular case (which is what “general or public importance” entails); or
(b)for some other reason, warrants a decision from the High Court.
Although category (b) is open ended, we agree with a series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could
3 Section 245(3).
4 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721.
not countenance the Tribunal’s decision standing, that this alternative requirement could be met.5
[11] In Minister of Immigration v Jooste,6 the Court of Appeal stated that the test under s 245(3) is similar to that applying to second appeals to the Court of Appeal under s 67 of the Judicature Act 1908, citing Waller v Hider.7 In that case, the Court of Appeal had stated that upon a second appeal, the Court is not engaged in the general correction of error. Its primary function then is to clarify the law and to determine whether it has been properly construed and applied by the Court below.8
Discussion
[12] The basis on which the Tribunal is to determine a humanitarian appeal is governed by s 207 of the Act, which relevantly provides:
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.
…
[13] Mr Dalley, for Mr Huang, submitted there are two seriously arguable errors of law by the Tribunal, both relating to s 207(1)(a) of the Act:
5 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19(c)]; Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [8]-[9]; Cao v Immigration and Protection Tribunal [2014] NZHC 259 at [12]; Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [54]-[55]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [9]; Liu v Minister of Business, Innovation & Employment [2014] NZHC 3074 at [9]-[10]; Fu v Chief Executive of the Ministry of Business, Innovation & Employment [2014] NZHC 3346 at [23]; CV v Immigration and Protection Tribunal [2015] NZHC 510, [2015] NZAR 594 at [78]; Ali v Minister of Immigration [2015] NZHC 1794 at [32]; and Chan v Minister of Immigration [2015] NZHC 2036 at [26].
6 Minister of Immigration v Jooste [2014] NZCA 23 at [5]. See also Hai v Minister of Immigration
[2019] NZCA 55 at [36].
7 Waller v Hider [1998] 1 NZLR 412 (CA).
8 At 413.
(a)misapplying the Supreme Court decision in Guo v Minister of Immigration,9 when determining whether existing exceptional humanitarian circumstances made it unjust or unduly harsh for Mr Huang to be deported; and
(b)considering the integrity of the immigration system in the second limb of s 207(1)(a), rather than separately under s 207(1)(b). Mr Dalley’s reference to the ‘second limb’ of s 207(1)(a) meant the balancing of Mr Huang’s offending against the exceptional humanitarian circumstances identified (in the ‘first limb’) to determine whether it was unjust or unduly harsh for him to be deported.
Guo v Minister of Immigration
[14] In essence, Mr Dalley submitted that the Tribunal erred, misapplying the Supreme Court decision in Guo v Minister of Immigration, by balancing all the exceptional circumstances of Mr Huang and his family against his offending, rather than balancing only his exceptional circumstances against his offending and then separately considering the unjustness and undue harshness of the deportation on the affected family members. Mr Dalley submitted that unless the exercise is separated in this way, the exceptional circumstances are diluted – the offending is effectively double counted – and all visa holders found guilty of serious criminal offending would be deported despite any exceptional circumstances. He submitted that it would be unjust and a breach of natural justice and the rule of law to punish the children for the crime of another. He also submitted that including the consequences of deportation for Mr Huang’s innocent wife and children at the balancing stage amounted to taking an irrelevant matter into account.
[15] I say at the outset that, however the balancing exercise is carried out, I agree that the offending should not be double counted, as Ms Williams, for the respondent, acknowledged.
9 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.
[16] In Guo v Minister of Immigration, Mr Guo was convicted of importing pseudoephedrine and was served with a deportation order in 2009.10 In 2011, two of his children who had obtained New Zealand residence as his family members were served with deportation liability notices under s 158(1)(b)(ii) of the Act. The Supreme Court granted leave to appeal against the decision of the Court of Appeal refusing leave to appeal to the High Court, but only in respect of the two children, not Mr Guo.11 The Tribunal had not considered in any detail the unusual possibility of permitting the two children to stay in New Zealand despite the absence of their parents given there was an older (adult) sibling who was a New Zealand citizen.
[17] Subsequently, the Supreme Court allowed the children’s appeal and granted them leave to appeal to the High Court under s 245 of the Act.12 In that judgment, the Supreme Court stated:13
The language of s 207(1) (and similar language in other provisions relating to deportation and removal) has received considerable attention in the courts. It has been held that the expression “unjust or unduly harsh” is composite in nature and that the Tribunal need not inquire separately as to whether deportation would be (a) unjust or (b) unduly harsh.14 Whether deportation would be “unjust or unduly harsh” is to be assessed in light of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of deportation. The public interest is not immaterial to the application of s 207(1)(a) but is primarily relevant to the application of s 207(1)(b). In determining whether deportation would be unjust or unduly harsh, the primary focus is on the personal circumstances of the person in respect of whom deportation is proposed and those of immediate family members who will be affected by that person's deportation.
[18] Mr Dalley emphasised the words “involves” and “for the appellant” in the middle sentence of this passage. He submitted the Supreme Court thus made it suitably clear that the assessment of the unjust and unduly harsh component of s 207(1)(a) involves a balancing exercise of the offending against the consequences of deportation for the appellant, but crucially, also includes a separate determination of
10 Under the previous Immigration Act 1987.
11 Guo v Minister of Immigration [2015] NZSC 76, [2015] 1 NZLR 732 at [23].
12 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.
13 At [9].
14 See for instance Patel v Removal Review Authority [2000] NZAR 200 (CA) at 204; Esau v Minister of Immigration HC Wellington AP320/98, 5 October 2000 at [12]; Faatafa v Minister of Immigration HC Christchurch CIV-2005-409-1494, 17 October 2005 at [50]; and Pal v Minister of Immigration [2013] NZHC 2070, [2013] NZAR 1240 at [57]-[59].
the unjustness and harshness of deportation on the affected immediate family members.
[19] In Guo the Supreme Court was dealing with the deportation liability of the children, who were subject to deportation as a result of Mr Guo’s non-disclosure of his involvement in drug importation when he applied for their residency. The children had done nothing wrong. In that context, the Supreme Court expressed concern about the Tribunal’s references to the proposition that Mr Guo’s offending could not be without consequences, which did not appear material to s 207(1)(a) when considering the deportation of the children.15 But the context is quite different here. This case concerns only the deportation liability of the offender.
[20] The Supreme Court did contemplate the situation where deportation can be unjust and unduly harsh to a third party. The Court referred to Mr Guo’s earlier reliance on hardship which the children would suffer, stating that such arguments could carry Mr Guo only so far, because:16
(a)The s 207(1)(a) exercise must focus on the personal circumstances of the person to be deported and in particular whether the deportation of that person would be unjust or unduly harsh. For this reason a finding as to a high level of hardship for Jiaxi or Jiaming if Mr Guo were deported would not in itself necessarily justify the conclusion that Mr Guo’s deportation was therefore unjust or unduly harsh; in particular having regard to his high level of culpability.
(b)That deportation would be unjust or unduly harsh to a third party would not be determinative if the conclusion was reached under s 207(1)(b) that deportation of Mr Guo was nonetheless required in the public interest. It would thus have been open to the Tribunal to have upheld the deportation of Mr Guo (on the basis of either or both of s 207(1)(a) and (b)) but to have allowed the appeals of Jiaxi and Jiaming.
[21] Read as a whole, and remembering that Mr Guo himself had not been granted leave to appeal, I do not consider this passage supports Mr Dalley’s submission in this case. As indicated, the Supreme Court was dealing with a different situation involving the deportation liability of innocent children. In cases involving the deportation liability of offenders, the consequences of deportation on family members of an
15 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [22(c)].
16 At [12].
offender are relevant and the effect on children is of particular importance given New Zealand’s international obligations.17 Where relevant, these effects are included and assessed in s 207(1)(a) as part of determining whether it would be unjust or unduly harsh “for the appellant” to be deported. Otherwise, there would be no place for them to be considered within the terms of s 207(1)(a).
[22] Nor do I consider the Supreme Court in Guo v Minister of Immigration was saying that, in a case concerning only the deportation liability of the offender, the Tribunal must balance only the offender’s exceptional circumstances against his or her offending, and then separately determine the unjustness or undue harshness of deportation on affected family members. There is no room for such a separate determination in s 207(1)(a). That would be a substantial gloss on its terms.
[23] Thus, I do not accept the submissions that the Tribunal erred by balancing all the exceptional circumstances of Mr Huang and his family against his offending, that this involves ‘punishing’ his innocent family members for another’s offending contrary to the rule of law, nor that including the consequences of deportation for his innocent wife and children amounted to taking an irrelevant matter into account. Section 207(1) does not mandate separate assessment of the consequences for third parties outside the balancing exercise. I do not consider there is inherent dilution of exceptional circumstances or double counting of the offending unless the assessment is separated in that way. It does not mean that all visa holders found guilty of serious criminal offending would be deported despite any exceptional circumstances. Rather, if the proposed determination of the unjustness and harshness of deportation on affected family members were required separately from the balancing exercise, such a finding would render the balancing exercise redundant and the offender could only be deported if the s 207(1)(b) public interest limb applied.
[24] As indicated, where relevant, the consequences of deportation for family members are to be assessed as part of the exceptional circumstances under s 207(1)(a). In this case involving only the deportation liability of Mr Huang, I consider the
17 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24]-[25], referring to the United Nations Convention on the Rights of the Child. See also O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599, [2012] NZAR 1033 at [32].
exercise involves balancing all the exceptional circumstances of Mr Huang and his family against his offending. The outcome should not be any different whether their circumstances are considered together or separately.
[25] In this case, the Tribunal prefaced its consideration of family interests with reference to New Zealand’s international obligations.18 The Tribunal then clearly considered the impact of deportation on Mr Huang’s wife and children, and concluded there were exceptional circumstances.19 The Tribunal accepted they would not accompany Mr Huang to China if he were deported.20 The Tribunal considered that his wife would find it difficult raising the children without his emotional, practical and financial support and would suffer distress and sadness,21 and that the children’s development could be expected to be adversely affected by the loss of contact with a parent.22 They would lose close daily physical contact with their father as they grow up.23 Unlike Guo, as the wife and children were not liable for deportation, there was no issue about their absence of fault. In the context of this case, it was unnecessary for the Tribunal explicitly to record their absence of fault – the Tribunal did not suggest they were at fault.
[26] Balanced against those impacts, the Tribunal considered there were mitigating factors going to whether these exceptional circumstances made deportation unjust or unduly harsh – Mr Huang’s previous absences, the support of his wife’s family and the ability to visit him for extended periods in China.24 As Mr Dalley appreciates, on an error of law appeal Mr Huang cannot realistically challenge the weighting in the Tribunal’s factual assessment.
[27] I conclude there is no seriously arguable question of law as to whether the Tribunal erred by misapplying s 207 as interpreted by the Supreme Court in Guo.
18 Huang v Minister of Immigration [2019] NZIPT 600505 at [80].
19 At [82]-[89] and [93]-[94].
20 At [82].
21 At [87] and [94].
22 At [88].
23 At [93].
24 At [93]-[96].
Integrity of the immigration system
[28] I turn to the second question of law raised, that the Tribunal erred by considering the integrity of the immigration system in the second limb of s 207(1)(a), rather than separately under s 207(1)(b).
[29] Section 207(1)(b) contains a separate public interest requirement for the Tribunal to allow an appeal, that “it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand”. This requirement only arises if the Tribunal is satisfied there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported.25 Here, the Tribunal was satisfied it was not unjust or unduly harsh for the appellant to be deported and so said it was unnecessary for it to consider the ‘public interest’ limb of the test.26
[30] It is common ground that the effect of allowing an appellant to remain in New Zealand on the credibility of the immigration system in the eyes of reasonable members of the public may be relevant to the assessment of whether it would be contrary to the public interest to allow him to remain.27
[31] Mr Dalley submitted that the Tribunal, however, erroneously considered that Mr Huang’s serious offending undermined the integrity of the immigration system in its s 207(1)(a) analysis. Mr Dalley acknowledged that the nature and gravity of the offending is relevant to determining whether it is unduly harsh or unjust to deport under s 207(1)(a), but he submitted the Tribunal went further and took into account the integrity of the immigration system as a specific consideration at the wrong stage in the s 207 test, that is, in the s 207(1)(a) balancing, rather than separately in relation to s 207(1)(b). He relies on [92] of the Tribunal’s decision:
As well as the inherent seriousness of the offending itself, there is also an element of the undermining of the integrity of the immigration system in the context of this offending. The offending was a premeditated attempt by the appellant, in orchestration with others, to smuggle into this country from his
25 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [30]; and Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [153], in relation to the previous s 47(3) which was the same in this respect.
26 Huang v Minister of Immigration [2019] NZIPT 600505 at [98].
27 Helu v Immigration and Protection Tribunal at [176].
home country a substantial quantity of a drug which would have caused real and significant damage to the New Zealand population. For a migrant who has been afforded the privilege of permanent residence in this country to try to take advantage of that status to commit such offences injurious to public welfare does undermine public confidence in the administration of the immigration system, and hence its integrity. Mr Cheng’s submission that the integrity of the system is best served by the application of due process, not by creating a public perception that serious offenders can be deported, does not adequately address the issue. Depending on the circumstances, public confidence in the administration of the immigration system can be undermined not only by deficiencies in due process but also by a failure to respond appropriately (by deportation liability) in cases where serious offending has threatened public safety, such that the person is undeserving of retaining the right to reside in this country.
[32] Mr Dalley submitted this went beyond an assessment of the nature and gravity of the offending and turns the purpose of this component into a specific consideration with negative weighting at the wrong stage of the test. He submitted that if this factor had been correctly omitted from the s 207(1)(a) balancing, the result of the balancing may have been different, and that the result in relation to s 207(1)(b) may also have been in Mr Huang’s favour as the Supreme Court’s decision in Helu v Immigration and Protection Tribunal indicates that s 207(1)(b) involves both positive and negative public interest factors.28
[33] I accept that the passage of the Tribunal’s decision relied on, contained within its s 207(1)(a) analysis of whether it would be unjust or unduly harsh for the appellant to be deported, considered public confidence in the administration of the immigration system, and hence its integrity.
[34] However, it does not follow that the Tribunal erred. As indicated, Mr Dalley acknowledged that the nature and gravity of the offending is relevant to determining whether it is unduly harsh or unjust to deport. The integrity of the immigration system has some relevance to the application of s 207(1)(a) given the need to determine whether deportation would be “unduly harsh”. That is evident from Ye v Minister of Immigration,29 which concerned removal of an overstayer under the similar statutory test of “exceptional circumstances of a humanitarian nature that would make it unjust
28 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [196].
29 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
or unduly harsh for the person to be removed” in s 47(3) of the Immigration Act 1987. The majority of the Supreme Court said:30
The qualification of the word “harsh”, by the word “unduly”, recognises that there may be some degree of harshness in removing an overstayer from New Zealand. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. Undue in this context means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system…
[35] Accordingly, as the Supreme Court stated in Guo, the public interest is not immaterial to the application of s 207(1)(a) but is primarily relevant to the application of s 207(1)(b).31
[36] The Tribunal was correct to consider the nature and seriousness of Mr Huang’s offending in the context of balancing whether it would be unjust or unduly harsh to order deportation. That inherently involved assessing the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system. I consider the Tribunal’s reference to Mr Huang’s actions undermining “public confidence in the administration of the immigration system, and hence its integrity”, involves seeking to identify a level of harshness that must be regarded as acceptable and therefore not “unduly harsh” given the particular offending, rather than taking into account a separate specific consideration. I do not consider the Tribunal was taking into account an irrelevant factor in its application of s 207(1)(a). In relation to this issue as well, as Mr Dalley appreciates, Mr Huang cannot realistically challenge the Tribunal’s factual assessment of the nature and gravity of his offending on an error of law appeal.
[37] As the Tribunal concluded that deportation would not be unjust or unduly harsh, the separate public interest limb in s 207(1)(b) did not arise. Where it does arise, the Supreme Court has indicated that something more than a general concern is required to outweigh a finding in s 207(1)(a) that deportation would be unjust or unduly harsh.32
30 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [35].
31 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9]. See [17] above.
32 Ye v Minister of Immigration at [31]-[32] and [35].
[38] I conclude there is no seriously arguable question of law as to whether the Tribunal erred by considering the integrity of the immigration system in relation to s 207(1)(a) rather than s 207(1)(b).
General or public importance or any other reason
[39] Even if Mr Huang had identified an arguable question of law, leave would only be granted under s 245 of the Act if the question raised has “general or public importance” or comes within the “any other reason” ground.
[40] The fact that the case concerns the serious issue of deportation, and particularly deportation impacting family bonds, does not inherently make it of general or public importance. But I accept that if the questions of law were arguable, they potentially affect the Tribunal’s approach beyond this case and might therefore be of more general importance – even though I consider the decision the Tribunal reached in this case was reasonably open to it on the facts.
[41] In terms of the “any other reason” ground, I do not consider this is an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing.33
Result
[42]The application for leave to appeal is dismissed.
[43]The respondent is entitled to costs on a 2B basis and usual disbursements.
Gault J
33 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
15
1