Jiang v Chief Executive of the Ministry of Business, Innovation and Employment
[2020] NZHC 1439
•25 June 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-83
[2020] NZHC 1439
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER
of a judicial review
BETWEEN
GUANGBO JIANG
First Applicant
JINHONG WAN
Second ApplicantMIAOJIN JIANG
Third ApplicantLAI JIANG
Fourth ApplicantAND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
Respondent
Hearing: 5 June 2020 Appearances:
J R Moss for the Applicants
B C L Charmley and M Djurich for the Respondent
Judgment:
25 June 2020
JUDGMENT OF POWELL J
This judgment was delivered by me on 25 June 2020 at 3.30pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
JIANG v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2020] NZHC 1439 [25 June 2020]
[1] The applicants, a family of four, seek judicial review of a decision declining them entry into New Zealand on 17 January 2020.
[2] The application for review initially raised a broad range of issues. The statement of claim alleged that the immigration officer considering the applicants’ case failed to take into account relevant considerations, issued a decision that was unreasonable or substantially unfair, breached natural justice, failed to give reasons and/or breached the applicants’ rights or legitimate expectations.
[3] By the time the application was heard however the applicants’ case was significantly reduced in scope so as to allege that the immigration officer considering the position of the applicants “did not take into account relevant information which led to a decision that was unreasonable”. Specifically, Mr Moss on behalf of the applicants submitted that the officer:
(a)with reference to Ye v Minister of Immigration1 and the United Nations Convention on the Rights of the Child (“UNCROC”) was required to take into account the interests of the children, the third and fourth applicants, Miaojin Jiang (“Miaojin”) and Lai Jiang (“Lai”), as a relevant matter and failed to do so;
(b)declined a request by the first applicant, Guangbo Jiang to have a lawyer present during the interview process; and
(c)acted in a manner that was “biased and deceptive” towards the second applicant Jinhong Wan.
[4] As a result Mr Moss submitted that the decision was made in error of law and was unreasonable.
1 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
Background
[5] Each of the applicants are nationals of the People’s Republic of China who held various visas enabling them to reside lawfully in New Zealand. Mr Jiang was the holder of a work visa under the Work to Residence category. Ms Wan, is the wife of Mr Jiang and held a work visa under the Partnership Work Visa category. Miaojin and Lai, aged 16 and 7 respectively, are the children of the Mr Jiang and Ms Wan and were holders of student visas as dependents of the first two applicants. Both children have been attending school in New Zealand, and in 2018 the family purchased a property in New Zealand.
[6] The types of visas held by the applicants required them to apply for entry permission upon arrival to New Zealand.2 Without such permission they were not entitled to enter the country.3 As a result, pursuant to s 109 of the Immigration Act 2009 (“the Act”), entry could be granted or refused at the discretion of the relevant immigration official.4 There will be sufficient grounds to refuse entry permission where the applicant submits false information or withholds relevant information.5
[7] In exercising the broad discretion under s 109 an immigration official is also required to act in accordance with the immigration instructions contained in Immigration New Zealand’s Operational Manual (“the immigration manual”). The immigration manual relevantly provides that:
Y4.15 People who must be refused entry permission unless granted an exception to instructions: circumstances and compliance concerns
See also Immigration Act 2009 ss 22 and 107.
(a)Entry permission must be refused to any person, except a person listed in Y3.10(a), who is not otherwise dealt with under Y4.1 and:
(i)makes a false declaration on any part of the New Zealand Passenger Arrival Card or Crew Declaration, whether that declaration relates to an immigration matter or not; or
2 Immigration Act 2009, s 103(1)(d).
3 Section 14(1)(b). Entry permission does not flow from the fact that the individual is the holder of a temporary entry class visa (s 46).
4 Section 109(1).
5 Section 112(6).
…
(b)A person subject to (a) above may be granted entry permission if an immigration officer deliberately and properly does so as an exception to instructions (see Y4.45).
[8] It was against this background that on the evening of 17 January 2020 Mr Jiang made a false declaration on his Passenger Arrival Card when the family returned to New Zealand after a holiday in China. Mr Jiang failed to declare to New Zealand Customs nine cartons of cigarettes concealed in his luggage (some 1,715 cigarettes in excess of the family’s entitlement), and thereby rendered himself and his family liable for what is called “turnaround”.
[9] Upon discovering the cigarettes New Zealand Customs referred the family to Immigration New Zealand, which forms part of the Ministry of Business, Innovation and Employment, where their position was considered by a Border Officer, Alvin Ram.
[10] Officer Ram undertook passenger risk assessments and completed a triage worksheet through interviewing both Mr Jiang and Ms Wan. The triage interviews not only confirmed the position established by Customs but also confirmed that approximately two years before Mr Jiang had failed to declare four cartons of cigarettes for which he had been fined. There is no dispute that in considering the applicants’ position Officer Ram was, in terms of s 109 of the Act and Y4.15, required to refuse the family permission to enter New Zealand unless they were granted entry as an exception in terms of Y4.45 of the immigration manual. This provides:6
Y4.45 Making a decision to grant entry permission as an exception to instructions
(a)An immigration officer must attempt to interview a person before deciding to grant entry permission as an exception to instructions.
(b)The immigration officer must have regard to the principles of fairness and natural justice (see A1).
6 This instruction also refers to A1, however, the respondent acknowledges that A1 is not technically an instruction that binds Mr Ram as it does not fall within the categories provided for in s 22 of the Act on which the Minister may make instructions on.
(c)When making the decision, an immigration officer must consider all of the surrounding circumstances, including factors both for and against the grant of entry permission such as:
(i)whether the person has compelling and genuine reasons to enter New Zealand; and
(ii)whether the person can take any action to meet the requirements for a visa and/or entry permission; and
(iii)whether there is any other impediment to the grant of a visa and entry permission.
(d)An immigration officer must record reasons for the decision to grant entry permission as an exception to instruction and enter those reasons into the Ministry’s records.
[11] As a result, Officer Ram proceeded to formally interview Mr Jiang. The interview began at around midnight on 17 January 2020 with Mr Jiang being assisted by an interpreter via telephone. The interview traversed Mr Jiang’s employment in New Zealand, his reasons for concealing the cigarettes and his affairs in China. At the conclusion Officer Ram informed Mr Jiang that he had offered potentially prejudicial information (“PPI”) and was advised he may be turned around and removed from New Zealand on the next available flight. In response Mr Jiang requested that he be given a chance to spend some time with his wife and children in New Zealand.
[12] Having obtained comment from Mr Jiang Officer Ram consulted his supervisor and upon returning advised Mr Jiang that he had decided to refuse him entry permission, that he was now liable for turnaround and would be placed on the next available flight leaving New Zealand.
[13] Officer Ram then formally interviewed Ms Wan. Ms Wan was questioned regarding Mr Jiang’s employment and whether she had been aware of the concealed cigarettes. Following this Ms Wan too was informed she may have offered PPI and that as her visa, as well as those of the children, were dependent on Mr Jiang’s visa and as a decision had been made to cancel his visa, they no longer met the requirements of their visas. Ms Wan responded by asking Officer Ram to:
…take into account the children are studying in New Zealand and have been for two years. The children can study as international students. We have lot of things to do
in New Zealand. I wish you can reconsider for the four of us. Or especially for me and the two kids can you reconsider your decision.
[14] Officer Ram spoke to his supervisor and upon returning informed Ms Wan that he had refused entry permission to her and her children, and that they too were liable for turnaround and would be placed on the next available flight leaving New Zealand.
[15] Following the revocation of the applicants’ visas Mr Jiang communicated with a lawyer who in turn requested that the respondent reconsider its decision on account of a failure of the respondent to observe the relevant requirements in the immigration manual. The request to reconsider was declined. The applicants were returned to China on the evening of 18 January 2020.
Discussion
[16] I begin my analysis by considering the basis for Mr Moss’ submission that Officer Ram had an obligation to consider the interests of Miaojin and Lai and failed to do so. As Ms Charmley submitted on behalf of the respondent, it is difficult to see the source of any specific obligation to take into account the interests of Miaojin and/or Lai. The statutory framework considered by the Supreme Court in Ye, relied on by Mr Moss, was subsequently repealed, and it is clear that the type of humanitarian inquiry at issue in that case is not the focus of the relevant provisions of the Act applicable in this case. Thus, while the UNCROC was found to be relevant in Ye, the conclusion that the best interests of the child should be a primary consideration was made in the context of children who were New Zealand citizens. The Supreme Court specifically did not purport to draw any conclusion with regard to children not lawfully in New Zealand, and indeed noted that New Zealand had made a reservation to UNCROC with respect to children unlawfully in New Zealand and that the reservation would have relevance to future cases concerning such children.7
7 The reservation dated 16 April 1993 provides “nothing in this Convention shall affect the right of the government of New Zealand to continue to distinguish as it considers appropriate in its law and practice between persons according to the nature of their authority to be in New Zealand including but not limited to their entitlement to benefits and other protections described in the Convention, and the Government of New Zealand reserves the right to interpret and apply the Convention accordingly”.
[17] The distinction is important. The children in Ye had an independent and fundamental right to remain in New Zealand even if their parents were deported. Miaojin and Lai do not have such a right. Instead, their right to be in New Zealand was like Ms Wan’s, at all times dependent on Mr Jiang’s right to live and work in New Zealand. As a result, to accept Mr Moss’s submission and impose an obligation to independently consider the best interests of Miaojin and Lai would be entirely inconsistent with the relevant provisions of the Act.8
[18] It would also be inappropriate to impose an obligation on immigration officers to seek out additional information relating to the interests of children. Section 109 provides that the Minister (or his or her delegate), in their discretion, may grant or refuse entry permission to a holder of a temporary entry class visa. The effect of refusing entry permission to a holder of a temporary entry class visa is to make a former visa holder, like the applicants in this case, subject to turnaround pursuant to s 115 of the Act. Section 112(1) in turn spells out that it is the responsibility of an applicant for entry permission to ensure that all information, evidence and submissions are provided when the application is made, while s 112(2) specifically states that the Minister (or delegated decision-maker) considering the application is not obliged to seek further information and may determine the application on the information provided to them. In these circumstances, to read in a requirement for Officer Ram to proactively seek information regarding Miaojin and/or Lai would fly in the face of these specific provisions.
[19] In any event it is not correct to suggest that Officer Ram had no information about Miaojin or Lai prior to making the decisions in issue. In particular, the various documents completed by Officer Ram make it clear that even before the formal interviews took place he knew Mr Jiang was travelling with his family, that he and Ms Wan had brought a house in Auckland in May 2018, and that the children were studying at school in New Zealand. It was also clear Officer Ram understood the
8 Y4.45(c) of the instructions requires an immigration officer to consider “all of the surrounding circumstances” including whether the person has compelling and genuine reasons to enter New Zealand when considering whether to grant entry permission as an exception to the instructions. It is possible, that as in this case, the children’s residence in New Zealand and their attendance at school will make up part of the surrounding circumstances. However, this is distinct from an obligation to consider the best interests of the children and for this consideration to be elevated to paramount importance, as was the approach advanced by Mr Moss.
revocation of Mr Jiang’s visa would have a consequential effect on each of the other applicants, a point made explicitly by Mr Jiang when he was asked to comment at the end of his formal interview. Likewise Ms Wan, as noted, specifically reiterated the fact the children were studying in New Zealand when she was asked to comment in the course of her own formal interview.
[20] Finally, with regard to this issue no further details about the children’s situations have been provided than that before Officer Ram, let alone any information to indicate they have suffered significant adverse consequences as a result of being returned to China with their parents, other than a degree of social and educational disruption. The evidence is in fact unclear as to exactly what level either of the children was studying at in New Zealand, still less any difficulties they have had in resettling back in China, at what level they have been required to fit back into the Chinese education system, or whether there are other any other particular issues that have emerged.
[21] Taken together I conclude there is no basis for suggesting there were relevant matters not considered by Officer Ram at the time the applicants’ visas were revoked.
[22] The remaining issues can be addressed relatively quickly. First, there is no evidence before the Court to suggest that Mr Jiang (or indeed Ms Wan) ever requested a lawyer be present at the time the interviews took place. Instead the available evidence indicates that Mr Jiang sought and was permitted to obtain legal advice after the decisions had been made and prior to flying out the following evening.
[23] Likewise, there is no evidence that Officer Ram was “biased and deceptive” towards Ms Wan at any point. There is simply no evidence before the Court to suggest that Officer Ram conducted himself other than in an objective manner and in accordance with appropriate procedure, noting that his actions were peer-reviewed at the time. On the contrary, although as a matter of law the visas of Ms Wan and the children appeared to stand or fall with Mr Jiang’s, Officer Ram independently considered whether exceptional circumstances existed for not revoking Ms Wan’s visa.
[24] Given this position there is otherwise no basis to suggest the decisions made by Officer Ram were erroneous and/or otherwise unreasonable.
Decision
[25] The application for review is declined. Should the respondent seek costs a memorandum is to be filed within two weeks of the issue of this judgment, following which the applicants will have two weeks to respond. I will then determine the issue on the papers.
Powell J
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