IH (China) v Minister of Immigration
[2025] NZHC 832
•8 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-474
[2025] NZHC 832
UNDER Section 245 of the Immigration Act 2009 IN THE MATTER OF
A decision of the Immigration and Protection Tribunal, being [2024] NZIPT 600754 dated
13 February 2024
BETWEEN
IH (CHINA)
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing: 13 August 2024 Appearances:
M L Clark and C Oh for the Applicant
S M Perera and R M McConnell for the Respondent
Judgment:
8 April 2025
Reissued:
17 April 2025
JUDGMENT OF ROBINSON J
This judgment was delivered by me on 8 April 2025 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors/Counsel:
Vallant Hooker & Partners, Auckland Crown Law, Wellington
IH (CHINA) v MINISTER OF IMMIGRATION [2025] NZHC 832 [8 April 2025]
Introduction
[1] The applicant, IH, is a 40-year-old Chinese citizen who came to New Zealand to study in 2007. In 2011 he became a New Zealand resident, qualifying under the “Skilled Migrant” category. Between 2008 and 2014 he was employed as an immigration advisor. In 2015 he established his own immigration advisory service.
[2] In 2021 IH was sentenced to a term of two years and ten months’ imprisonment after pleading guilty to 23 dishonesty offences dating back to 2015. While IH was in prison he was served with a deportation liability notice. He appealed to the Immigration and Protection Tribunal (Tribunal) on humanitarian grounds.
On 14 February 2024 the Tribunal dismissed his appeal (Decision).1
[3] IH seeks leave to appeal. He says the Tribunal made factual errors amounting to errors of law. In particular, the applicant says the Tribunal erroneously found that his offending occurred during the course of his professional relationship with his victims; when in fact it occurred after they had obtained their resident visas and therefore following the end of that professional relationship.
[4]The respondent, the Minister of Immigration, opposes.
Background
[5] As noted, IH came to New Zealand to study in 2007. From 2008 he worked as an immigration advisor. He married a New Zealand resident in 2014 but they separated in 2019. Their daughter was born in December 2015. She is a New Zealand citizen by birth.
[6] In June 2015 the applicant’s parents were granted residency and moved to New Zealand.
[7] In December 2015 IH and his co-offenders began offending against a married couple who are Chinese citizens. With IH’s professional assistance, the couple had recently obtained “Business Investor” visas in November 2015. IH and his co-
1 IH (China) v Minister of Immigration [2024] NZIPT 600754.
offenders introduced the husband to a real estate development project and, through a series of fraudulent devices and false representations, obtained large sums of money from him.
[8]In May 2021 the applicant pleaded guilty to 23 charges:
(a)theft by a person in a special relationship (x6);2
(b)obtaining by deception (x6);3
(c)using a forged document (x3);4
(d)false accounting;5 and
(e)dishonestly using a document (x7).6
[9] The applicant committed five of those offences – one charge of theft by a person in a special relationship and four charges of obtaining by deception – between 10 December 2015 and 8 January 2016 (index offending). This offending rendered IH liable for deportation because it occurred within five years of him first holding a residence class visa and it gave the court the power to impose a term of imprisonment for two years or more.7
[10] On 8 May 2023 the applicant was served with a deportation liability notice. He appealed his deportation liability to the Tribunal on humanitarian grounds. On 13 February 2024 the Tribunal dismissed his appeal. The Tribunal found that, while exceptional humanitarian circumstances existed in support of IH’s appeal,8 when weighed against the gravity of his offending it would not be unjust or unduly harsh for him to be deported.9
2 Crimes Act 1961, ss 220(1) and 223(a). Maximum penalty: seven years’ imprisonment.
3 Sections 240(1)(a) and 241(a). Maximum penalty: seven years’ imprisonment.
4 Section 257(1). Maximum penalty: 10 years’ imprisonment.
5 Section 260(a). Maximum penalty: 10 years’ imprisonment.
6 Section 228(1)(b). Maximum penalty: seven years’ imprisonment.
7 Immigration Act 2009, s 161(1)(b).
8 IH (China), above n 1, at [76].
9 At [124] and [126].
The application
[11] IH seeks leave to appeal on a question of law pursuant to s 245(1) of the Immigration Act 2009 (Act). He asserts that:
(a)the Tribunal made incorrect factual findings that are so clearly wrong and insupportable based on the evidence as to constitute an error of law; and
(b)these incorrect factual findings caused the Tribunal to err in its assessment of whether it would be unjust or unduly harsh for him to be deported.
[12]More particularly, IH says the Tribunal erred in finding that:
(a)at the time of his offending the victims required an investment project to support their applications for resident visas under the Business Investor category;
(b)the victims’ investment in the real estate development project, to which IH introduced them and then used to offend against them, was related to their application for resident visas under the Business Investor category;
(c)the index offending of one charge of theft by a person in a special relationship and four charges of obtaining by deception came at the beginning of the victims’ attempts to become a resident of New Zealand; and
(d)at the time of the offending, the applicant was acting as the victims’ immigration advisor.
[13]Contrary to these factual findings IH says that in fact:
(a)on 17 July 2015 the victims were approved in principle for resident visas under the Business Investor category;
(b)on or about 29 September 2015, in accordance with the requirements of the Business Investor category visa, the victims invested
$10,000,000 in the ASB Portfolio Series;
(c)on 11 November 2015 the victims were granted resident visas; and
(d)his offending against the victims did not commence until after a meeting on 9 December 2015 when he first introduced them to the real estate development project. By that time his victims had their resident visas and the professional relationship between them had ended.
[14] Ms Perera for the respondent submits there are no grounds on which to grant IH leave to appeal. Counsel submits it is not seriously arguable that the impugned findings were wrong and without an evidential basis; and that in any event none of the alleged factual errors, in combination and in context, are so grave as to constitute errors of law. Ms Perera submits that, in any event, none of the alleged errors would have led to a materially different outcome.
Legal principles
Grounds for humanitarian appeals
[15] The three ingredients required for the Tribunal to allow an appeal on humanitarian grounds under s 207(1)(a) of the Act are: (a) exceptional circumstances;
(b) of a humanitarian nature; (c) that would make it unjust or unduly harsh for the appellant to be removed from New Zealand.10
[16] The use of the words “unduly” to qualify the word “harsh” recognises that a tolerable degree of harshness may arise out of deportations. Unduly harsh in this
10 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
context means harshness beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system.11
[17] Whether deportation would be “unjust or unduly harsh” is to be assessed in light of the reasons why the applicant is liable for deportation and involves a balancing of those considerations against the consequences of deportation for the applicant.12 In this assessment the primary focus is on the personal circumstances of both the person in respect of whom deportation is proposed and the immediate family members who will be affected by that person’s deportation.13
[18] If the criteria under s 207(1)(a) are met, the Tribunal must move on to the public interest inquiry under s 207(1)(b) of whether, “despite the unjustness or undue harshness, it would in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand”.14
[19] This means that a person seeking to avoid deportation must not only demonstrate the requisite injustice or undue harshness, but also that it would not be contrary to the public interest for them to be allowed to remain in New Zealand. In assessing the public interest, something more than a general concern for the integrity of the immigration system is necessary to outweigh the fulfilment of the first criteria. That test is deliberately set at a high level.15
The test for leave under s 245
[20] An application for leave to appeal under s 245 must demonstrate a seriously arguable error of law that is of either general or public importance, or that ought to be submitted to the High Court for any other reason.16 The requirement for leave
11 At [35].
12 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].
13 At [9].
14 Ye v Minister of Immigration, above n 10, at [30].
15 At [32].
16 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
indicates Parliament’s intent to limit appeals.17 The leave criteria have been described as stringent.18
[21] Because leave is only available in respect of questions of law, factual findings cannot be impugned unless they contain factual errors of such significance and magnitude that they constitute errors of law.
[22] IH’s application is based entirely upon alleged errors in the Tribunal’s factual findings. He therefore faces the “triple hurdle” identified by Kõs J in Taafi v
Minister of Immigration requiring him to show:19
(a)First, a seriously arguable case that the Tribunal’s factual findings are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court’s findings.
(b)Secondly, that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That
is, it is seriously arguable that:
(i)the Tribunal has made a finding of fact which is based on no evidence, based on evidence consistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and
(ii)the errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.
(c)Thirdly, that the question of law is one of general or public importance, or for some other reason ought to be considered on appeal. The former
17 Singh v Chief Executive of the Ministry of Business Innovation and Employment [2018] NZHC 972, [2018] NZAR 1120 at [26].
18 P v Minister of Immigration [2022] NZCA 188 at [17].
19 Taafi v Minister of Immigration [2013] NZAR 1037 at [19].
requirement is a “hard ask” in cases of alleged factual errors, no matter how profound. It is only in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that the “alternative limb” (any other reason) would be met. This approach has been affirmed by the Court of Appeal in Machida v Chief Executive of Immigration New Zealand and more recently in Chai v Minister of Immigration.20
[23] The Court has previously warned against a detailed analysis of separate parts of a decision in an attempt to expose defects or to identify some error or imperfection which can be elevated into an error of law.21 The decision must be looked at as a whole.
The Decision
[24]In setting out the relevant background, the Tribunal recorded that:22
In December 2015, the appellant (together with several co-offenders) commenced a series of dishonesty offences. The victims were a husband… and wife… who were Chinese citizens seeking to gain residence in New Zealand. The appellant was acting as the husband’s immigration advisor. To support his residence application under the Business Investment category, the husband required an investment project. The appellant and his co-offenders introduced the husband to a real estate development project and, through a series of fraudulent devices, which included falsely representing the purchase price of the land, a fictitious “under-the-table” payment required to purchase the land and that they would contribute financially to the project, obtained large sums of money from the husband.
[25] Applying s 207(1)(a) of the Act, the Tribunal found that, there are exceptional circumstances of a humanitarian nature that support his appeal against deportation. These include the best interests of his daughter.23 The Tribunal found IH to be a loving parent who has maintained an ongoing presence in her life since birth, and that her best interests lie in the continuation of her settled routine in New Zealand, which
20 Machida, above n 16, at [8]; Chai v Minister of Immigration [2024] NZCA 183 at [4].
21 Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9].
22 IH (China), above n 1, at [14] (emphasis added).
23 At [55] – [63].
include her father’s continued physical presence in a familiar environment.24 The Tribunal also considered the length of time IH has been settled in New Zealand;25 and the impact of his deportation on his parents.26 The Tribunal found that, considered cumulatively, these constituted exceptional circumstances of a humanitarian nature.27
[26] In weighing whether it would be unjust or unduly harsh to deport IH, the Tribunal referred at some length to the Police summary of facts which formed the basis upon which he had pleaded guilty,28 and this Court’s sentencing notes.29
[27]The Tribunal began its description of the applicant’s offending as follows:30
Essentially, the appellant and his co-offenders established a series of fraudulent devices related to a real estate development project that enabled them to deceive a married couple, for whom the appellant was acting as an immigration advisor. The couple were citizens of China applying for residence under the Business Investment category in New Zealand.
[28] Having described IH’s offending and summarised the sentencing decision, the Tribunal found that all IH’s offending was relevant to its assessment of whether deportation would be unjust or unduly harsh, not just the index offending that gave rise to his liability for deportation. It found:
[110] This index offending involved the appellant and his co-offenders inducing the husband to pay money by falsely representing [the terms of a sale and purchase agreement and their involvement in the development]. As noted above, these offences occurred in the context of the appellant owing a professional duty of care because of his position as the husband’s immigration advisor.
…
[114] In the current appeal, the Tribunal finds that consideration of the index offending within the context of all the offending is required to enable a fair and proper assessment of whether it would be unjust or unduly harsh for the appellant to be deported. This is primarily because of the connectedness of the index offending to the further offending. The index offending came at the beginning of the husband’s attempts to become a resident of New Zealand. Without the establishment of the business investment scheme, through the purchase of the land and agreement
24 At [62] – [63].
25 At [52] – [54].
26 At [64] – [72].
27 At [76].
28 At [80] – [95].
29 At [96] – [103].
30 At [81] (emphasis added).
that all parties would contribute to the development, the further offending could not have occurred. The constant feature of the appellant’s offending (index, and in entirety) arose from the establishment of a ‘special relationship’ of trust because of his role as the husband’s immigration adviser. For these reasons, the five offences that make up the index offending cannot be isolated from the scheme in which those offences occurred.
…
[118] The Tribunal considers that the appellant’s index offending, of one charge of theft by a person in a special relationship and four charges of obtaining by deception over $1,000, are serious offences because they strike at the heart of the requirement for fair and honest delivery of immigration advisory services in New Zealand, on which the immigration system relies. That is, a licenced immigration adviser must be honest, professional, diligent and respectful, maintain a relationship of confidence and trust with the client, provide objective advice, disclose any conflict of interest and act in accordance with New Zealand law (per clauses 1 and 2 of the Licenced Immigration Advisers Code of Conduct 2014). Contrary to those responsibilities, the appellant took advantage of a client who had a lack of knowledge of business practices in New Zealand and was relying on him to act within those professional requirements.
(emphasis added)
[29] In conclusion, the Tribunal found that, after weighing the exceptional humanitarian circumstances against the reason that IH was liable for deportation, deportation would not be unjust or unduly harsh:
[123] The appellant’s deportation from New Zealand will cause him significant emotional and financial distress and will be troubling and difficult for his parents. In addition to these factors, the Tribunal has the best interests of the appellant’s daughter at the forefront of its mind as a primary consideration that must be weighed in determining whether it would be unjust or unduly harsh for the appellant to be deported. The immigration policy objectives that must be weighed against these factors are the fraudulent conduct of the appellant in his position as a licenced immigration advisor. It was in that special position of responsibility and trust that the appellant took advantage of a person, his client, who was seeking to migrate to New Zealand and relied on him. The appellant’s offending occurred with deliberate disregard of his obligations in circumstances where professional standards explicitly required him to be (among other things) honest, diligent and respectful when acting as a licenced immigration advisor.
[124] Even considering the appellant’s low risk of reoffending, weighing the appellant’s index offending, in terms of its part in the establishment of a scheme that led to further offending, against the exceptional humanitarian circumstances as identified above, the Tribunal is satisfied that it would not be unjust or unduly harsh for the appellant to be deported from New Zealand.
(emphasis added)
[30] Having made that finding, the Tribunal considered it was unnecessary to consider the ‘public interest’ limb of the test under s 207(1)(b) of the Act.31
Submissions
Applicant’s submissions
[31] Ms Clark, counsel for IH, submits that the Tribunal’s principal error was in finding that, at all material times during his offending, IH was acting in his capacity as the victims’ immigration advisor when he began to offend against him. In fact, at that point the victims had received their residence visas and the professional relationship had ended. The property investment business that led to IH’s offending had nothing to do with his victims’ visa applications or their immigration status generally.
[32] IH accepts that he first met his victims when acting as their immigration advisor. But the fundamental submission of the applicant is that the charges against him concerned offending that was otherwise unrelated to that professional relationship. Counsel points out that the ‘special relationship’ that was an element of the offence plead guilty to by IH of ‘theft by a person in a special relationship’ arose out of his business relationship with the victims, in his capacity as a part of the corporate vehicle that carried out the property investment.32 It is not a reference to his previous role as the victim’s immigration advisor.
[33] Ms Clark submits that these errors led the Tribunal astray, particularly in its assessment of whether it would be unjust or unduly harsh to deport IH. She submits that the Tribunal’s incorrect finding that IH offended while acting as the victims’ immigration advisor was a major factor in finding that it would not be unjust or unduly harsh to deport him.
31 At [125].
32 Crimes Act, s 220(1).
Supporting evidence
[34] In support of his application for leave to appeal IH filed an affidavit containing documents which confirm the dates on which the victims applied for and received their resident visas, as set out at [13](a) – (c) above. In his affidavit IH also deposes that his professional relationship with his victims had ended before his offending began.
[35] Although this material was not before the Tribunal, Ms Clark says that it was always available to the respondent who ultimately was responsible for dealing with and issuing the victims’ visas. Ms Clark says that the relevance of that material before the Tribunal hearing was not apparent because the respondent did not oppose IH’s humanitarian appeal on the basis that he had acted in breach of his professional obligations to the victims.
[36] Ms Perera correctly points out that at the hearing before the Tribunal it was for IH to ensure that he put before the Tribunal all the information, evidence and submissions he wished it to consider.33 The Court has previously observed that the Act makes plain that an appellant cannot expect the Tribunal to fill the gaps in an appellant’s case.34 The Tribunal may seek additional information from any source but is under no obligation to do so. It is fully entitled to restrict its inquiry to the information provided by the parties.35
[37] I allowed IH to adduce the further evidence in this proceeding. It is relevant and it is mostly information that was readily available to the respondent. And, having reviewed the submissions before the Tribunal, Ms Clark’s submission that the respondent did not oppose IH’s appeal on the basis that he offended against the victims in his capacity as their immigration advisor appears to have some merit.
Respondent’s submission
[38] The respondent says it is not seriously arguable that the Tribunal’s findings were wrong and without evidential basis. Ms Perera submits that there is evidence to
33 Immigration Act, s 226(1).
34 Singh v Chief Executive of Ministry of Business, Innovation and Employment [2022] NZHC 738 at [84].
35 Minister of Immigration v Wu [2019] NZCA 237, [2019] NZAR 1217 at [42].
show that IH’s offending was connected to his professional relationship with his victims, and that the nature of IH’s offending cannot be divorced from this relationship.
[39] Ms Perera refers to several pieces of evidence that were before the Tribunal to justify a finding that IH was acting as the victims’ immigration adviser when he offended against them.
[40] A condition of IH’s parole was that he obtain the consent of his probation officer before starting or changing employment. This was justified on the basis that IH “used employment as an avenue to deceive and create victims”. Ms Perera also refers to this Court’s sentencing notes which record that IH was the “immigration consultant in New Zealand for the victims” and that he “induced them to contribute funds for the purchase of some land to be developed”.
[41] There is also the Ministry of Business, Innovation and Employment’s deportation liability assessment statement that “[IH] was acting as a licensed immigration adviser for an investor he deceived”. In his deportation liability questionnaire IH acknowledged: “I breached the trust from the victim, the ethics of my professional background by obtaining money from the company’s bank account by deception”.
[42] And, before the Tribunal, IH’s counsel (not Ms Clark) submitted that “[IH] further states that his criminal offending was related to his role as a New Zealand registered Immigration Adviser”, a position which he will no longer be able to hold.
[43] Ms Perera submits that IH never established before the Tribunal that his retainer with the victims had ended, despite having the opportunity to do so. As noted above, it is the applicant’s responsibility to establish his case and to ensure that the Tribunal has all the information, evidence and submissions he wishes it to consider.36
[44] Ms Perera submits that, in any event, the abuse of the special relationship between IH and his victims occurred regardless of whether he was still formally acting
36 Immigration Act s 226(1).
as their immigration adviser at that time. Less than a month passed after the time the victims gained their resident visas before IH began offending.
[45] Counsel submits that, in these circumstances, there is insufficient evidence that any factual error made by the Tribunal affected its decision. Ms Perera submits that the Tribunal’s overall conclusion that it would not be unjust or unduly harsh for the applicant to be deported is not so unsupportable or clearly untenable on the evidence that a proper application of the law requires a different conclusion. Attributing weight to particular factors is for the Tribunal alone;37 and challenges to the merits of the Tribunal’s decision and/or the weight placed on different matters do not constitute questions of law.38
[46] In terms of the third of the “triple hurdle” Ms Perera says that the alleged factual errors do not give rise to issues of general or public importance, and there is no other reason to justify leave being granted.
Decision
[47]In making the Decision, the Tribunal found that:
(a)IH offended against the victims at the beginning of their attempts to become residents;39
(b)the property investment scheme which IH used to offend against his victims was the same investment that qualified them for resident visas in the Business Investment category;40 and
(c)IH offended against the victims in the course of acting as their immigration advisor.41
37 Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [34].
38 Chai, above n 20, at [27].
39 IH (China), above n 1, at [114].
40 At [14].
41 At [123].
[48] I accept Ms Clark’s submission that it is strongly arguable that in making these findings the Tribunal erred. The evidence of the dates on which the victims applied for and received their resident visas (in November 2015) tends to show that the property investment to which IH introduced his victims (in December 2015) was unrelated to their visa applications. Having reviewed the relevant material I also accept Ms Clark’s submission that it is seriously arguable that IH was neither prosecuted nor sentenced on the basis that he was acting for his victims when he offended against them. He was not charged with breaching the Immigration Advisers Licencing Act 2007.
[49] I am also satisfied it is seriously arguable that these errors amounted to errors of law. The Tribunal’s finding that IH had offended “in his position as a licenced immigration advisor” and in breach of his professional obligations was an essential plank in its reasoning in finding that it would not be unjust or unduly harsh to deport IH.42 On the face of the Decision, it is seriously arguable that, but for these findings, the Tribunal would have reached a different decision.
[50] Finally, and for much of the same reasons, I am satisfied it is seriously arguable that in the present case there may have been individual injustice to such an extent that the Court on appeal would not countenance the Decision standing.
[51] The Tribunal has found that exceptional humanitarian circumstances exist in the case, including because it is in the best interests of IH’s nine-year-old daughter, who is a New Zealand citizen, for him to remain in New Zealand. This finding of the Tribunal is not cross-appealed by the respondent. Although adverse consequences for children will not necessarily be exceptional, the nature of the (seriously arguable) errors in this case are such that it is seriously arguable that, if those errors are made out, the resulting injustice could not be countenanced.
[52] I also note this Court’s previous observation in CD (China) v Minister of Immigration that where the interests of young children are in sharp focus as a result of
42 At [123].
a person’s immigration status, it is appropriate to err on the side of permitting a sufficiently arguable error of law to be fully ventilated in a substantive appeal.43
[53] Ms Perera will no doubt wish to expand upon the submissions I have briefly summarised above. For present purposes I am satisfied the appeal is seriously arguable and that IH should have leave to bring it. Ultimately it will be for the Court that hears the substantive appeal to make a conclusion.44
Result
[54]The application for leave to appeal the Decision is granted.
[55] If costs are sought and cannot be agreed, the applicant should file submissions of not more than five pages within 15 working days. The respondent should file submissions within 10 working days following that. I will deal with costs on the papers unless I require anything further.
Robinson J
43 CD (China) v Minister of Immigration [2023] NZHC 3152 at [65].
44 If the appeal is allowed, the Court may confirm the Decision, remit it back to the Tribunal with directions as to how it should be dealt with, or make any other order it sees fit. Immigration Act, s 245(4).
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