Li v Chief Executive of Ministry of Business, Innovation and Employment
[2018] NZHC 1309
•6 June 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002763
CIV-2017-404-002764 [2018] NZHC 1309
IN THE MATTER of an intended appeal and judicial review proceedings pursuant to ss 245 and 249 of the Immigration Act 2009 in respect of a decision of the Immigration and Protection Tribunal BETWEEN
YOUXIN LI
ApplicantAND
CHIEF EXECUTIVE OF MINISTRY OF BUSINESS INNOVATION AND
EMPLOYMENT
First RespondentIMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent
Hearing: 30 May 2018 Counsel:
MC Ryan for Applicant
IC Carter and EGR Dowse for Respondents
Judgment:
6 June 2018
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 6 June 2018 at 11 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel: Solomons, Dunedin.
Crown Law, Wellington. IC Carter, Wellington.
YOUXIN LI v CHIEF EXECUTIVE OF MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2018] NZHC 1309 [6 June 2018]
The case
[1] Mr Youxin Li was served with a deportation notice. He appealed to the Immigration and Protection Tribunal (the Tribunal) on humanitarian grounds. The Tribunal dismissed his appeal.1 Mr Li contends the Tribunal erred in doing so. He seeks leave to appeal, and leave to bring an allied judicial review proceeding. Leave is governed by the Immigration Act 2009 (the Act). Put broadly, an applicant must identify a question of law or issue, which must be of general or public importance, or otherwise warrant curial attention.2 The threshold is high.
[2] Mr Li contends it is arguable the Tribunal committed both reversible and reviewable error. First, by erring in both fact and law in rejecting his explanation for non-disclosure of his 2015 conviction for driving with excess breath alcohol. On this issue, Mr Li seeks to adduce fresh evidence alleging counsel incompetence. Second, by like error—and procedural impropriety—in relation to his mother’s illness. Third, in concluding exceptional humanitarian circumstances do not exist.
[3] The proposed appeal and review proceeding cover identical ground. Separate analysis is unnecessary.
Brief background
[4] Mr Li works as a chef in a Chinese restaurant in Dunedin. Mr Li came to New Zealand on a work visa in February 2005. He has lived and worked here since then. On 25 February 2015, Mr Li drove with excess breath alcohol.3 He pleaded guilty on 7 April 2015. Mr Li was fined $500 and disqualified from driving for six months.
[5] On 7 March 2016, Mr Li applied for an essential skills work visa. The application was approved. But, Mr Li did not disclose his conviction to Immigration New Zealand.
1 Re Li [2017] NZIPT 503453.
2 Immigration Act 2009, ss 245 and 249.
3 632 micrograms of alcohol per litre of breath.
[6] In February 2017, Mr Li applied for a work visa under the long-term skill shortage list. The application was declined as Mr Li did not have the right work experience. Mr Li disclosed his conviction in relation to this application, which he made through an immigration advisor.
[7] On 21 June 2017, Mr Li was served with a deportation liability notice. The notice said there was “sufficient reason” to deport Mr Li because of his conviction. Sufficient reason includes criminal offending and other matters relating to character.4
[8] On 5 July 2017, Mr Li’s solicitors, Lane Neave in Christchurch, wrote to Immigration New Zealand contending there were good reasons why Mr Li should not be deported. One reason concerned Mr Li’s mother, who suffers a heart condition. More about this later.
[9] On 4 August 2017, Immigration New Zealand advised Mr Li it did not accept his position. As observed, Mr Li appealed. The Tribunal dismissed his appeal on 17 October 2017.
Non-disclosure of conviction
[10] Mr Li sought to persuade the Tribunal deportation would be a disproportionate response to his offending because he would be prohibited from re-entering New Zealand for five years.5 Mr Li lodged an affidavit with the Tribunal dated 1 July 2017. For ease of reference, I refer to this affidavit as A and Mr Li’s later affidavits as B and C.
[11]In A, Mr Li said:
(a)He “genuinely forgot” about his conviction when applying for an essential skills work visa.
(b)His employer, Ms Cuihua Lim, helped complete that application.
4 Immigration Act, s 157.
5 Section 179(1).
(c)The drink-drive incident “was the first time I had drunk any alcohol since I arrived in New Zealand in 2005”.
[12] The Tribunal was “not satisfied … [Mr Li’s] failure to disclose his conviction was an inadvertent mistake on his part”.6 It noted Mr Li was convicted on 7 April 2015 and he applied for a visa on 7 March 2016—only 11 months later. The Tribunal considered that meant it “unlikely” Mr Li forgot to disclose the conviction.7 So too the exceptional nature of the incident given Mr Li’s testimony he had not otherwise consumed alcohol in New Zealand.
[13] The Tribunal also expressed concern about the accuracy of that evidence. It noted Mr Li provided Immigration New Zealand a medical certificate in 2012 in which Mr Li said he consumed alcohol on “social occasions only”.8 It considered that observation sat awkwardly with Mr Li’s evidence to the Tribunal he had not otherwise consumed alcohol since 2005.
[14] Mr Li seeks to adduce fresh evidence A did not reflect his instructions. In an affidavit dated 13 November 2017—B—Mr Li says:
(a)He had not forgotten about his drink driving conviction; rather, A “did not contain what I told my lawyer”.
(b)The correct position is that his employer completed the application in his absence, which Mr Li later signed.
[15] Mr Li also relies on an affidavit from Ms Lim. She says she completed the application for Mr Li, which he then signed:
I did not ask Youxin any questions and I did not tell him that there was a question as to whether he had any criminal convictions. I had assumed that Youxin did not have any.
6 Re Li, above n 1, at [29].
7 At [29].
8 At [28].
[16] Mr Li waived privilege.9 His former lawyers, Ms Nicola Robertson and Ms Winnie Chen, swore affidavits. Both refute Mr Li’s account, which prompted Mr Li to swear a third affidavit dated 28 May 2018—C. Neither party sought leave to cross-examine, and each submitted that course was unnecessary.10 More about this suite of testimony shortly.
[17] Against this background, Mr Li contends it is arguable the Tribunal erred in both fact and law in rejecting his explanation. In short, it did not have the correct evidence before it.
Analysis
[18] The logical starting point is the alleged fresh evidence. Under r 20.16 of the High Court Rules 2016, Mr Li must obtain leave to adduce it.11 Leave may be granted only if “special reasons” exist. Courts typically inquire whether the evidence is fresh, cogent and material.12
[19] Materiality is not in doubt. But freshness is, at least on conventional analysis, as the proposed evidence was available when the case was before the Tribunal. On behalf of Mr Li, Ms Ryan submits counsel incompetence vitiates the need for freshness, or otherwise satisfies this requirement: Mr Li told his lawyers everything they needed to know, and he should not suffer the consequences of their failing(s).
[20] Beyond (many) cases in the criminal jurisdiction, none appears to be directly on point.13 Context is likely explanatory. Courts have frequently held it inappropriate to admit fresh evidence on appeals on points of law and judicial review. For example, in Schier v Removal Review Authority Keith J for the Court of Appeal said, “on an appeal on a point of law the alleged error must be found in the reasoning of the
9 Li v Ministry of Business Innovation and Employment HC Auckland CIV-2017-404-2763/2764, 30 May 2018 (Minute).
10 As will become apparent, the real contest is not what Mr Li said; rather, what legal effect attaches to the totality of this evidence.
11 Although r 20.16 is framed in terms of an appeal, it appears uncontentious the rule also applies to judicial review proceedings. See, for example, T v Immigration and Protection Tribunal [2012] NZHC 1871 at [42].
12 Comalco New Zealand Ltd v Television New Zealand Ltd (1996) 10 PRNZ 573 at 579.
13 See, for example, Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.
authority on the evidence before it.”14 In Guo v Immigration and Protection Tribunal Gendall J appeared to accept the Tribunal was entitled to determine appeals solely on the basis of the information before it—see s 228(2) of the Act—and noted an appeal is not an opportunity for an appellant to bolster their case with new evidence.15 In T v Immigration and Protection Tribunal, Kos J considered it “difficult to accept that it would be appropriate for the Court to overturn the [Tribunal’s] decision because it had failed to take account of evidence which was not presented to it”.16
[21] Similarly, in Northcote Mainstreet Inc v North Shore City Council, Randerson J observed:17
... judicial review generally proceeds on the basis of the evidence available to the decision maker at the time of the decision. It follows that further evidence, whether of fact or opinion, which was not before the decision maker before the time of the decision, is normally irrelevant and inadmissible in proceedings of this kind. The attempted introduction of material after the event, especially for the purpose of casting doubt on the substantive reasonableness of the decision in question is generally inappropriate.
[22] Ms Ryan invited attention to two cases: Legal Services Agency v McDonald- Wright,18 and The Foundation for Anti-Aging Research v The Charities Registration Board.19 Fresh evidence was received in both. However, the latter involved a general appeal rather than one confined to a question of law, and the former contains no discussion of applicable principle, most likely because the evidence was contextual in nature and seemingly unremarkable.
[23] As against all this, doubt attaches to whether the law should definitively exclude the possibility of counsel incompetence animating either an appeal or judicial review in this context. What if, for example, negligence on the part of counsel caused the Tribunal to reach a conclusion it would not otherwise have reached? However, determination of this issue is unnecessary—and undesirable. On any view, the fresh evidence is not cogent. Elaboration of the narrative from [16] explains why.
14 Schier v Removal Review Authority [1999] 1 NZLR 703 (CA) at 706.
15 Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [43] and [47].
16 T v Immigration and Protection Tribunal, above n 11, at [41].
17 Northcote Mainstreet Inc v North Shore City Council (2004) 10 ELRNZ 146 (HC) at [68].
18 Legal Services Agency v McDonald-Wright HC Wellington CIV-2009-404-6356, 16 February 2010.
19 The Foundation for Anti-Aging Research v The Charities Registration Board [2015] NZCA 449.
[24] Ms Lim engaged Lane Neave to act for Mr Li; she had used the firm for her own immigration matters. Ms Robertson and Ms Chen held a telephone conference with Mr Li and Ms Lim on 26 June 2017.20 Ms Lim’s English is “good”; Mr Li’s is not. Ms Chen is fluent in both Mandarin and Cantonese. So, she acted as interpreter.
[25] Ms Chen asked Mr Li why he did not disclose his conviction. Mr Li said Ms Lim had helped him complete the application form and he had then signed it. But, Mr Li then said he had also forgotten about his conviction. Ms Chen interpreted both instructions during the conference. Ms Lim raised no concern about either. Ms Chen also captured both in a contemporaneous file note, which she appended to her affidavit.
[26]The next day, Mr Li sent Ms Chen a letter from Ms Lim. It said:21
In 2016 when Youxin Li applied for a work visa to transfer to my company, Youxin Li forgot about his drink driving conviction. He did not remember it until he applied for the talent work visa in 2017, and therefore he provided an explanation to INZ as to what had happened.
[27] On 28 June 2017 Lane Neave received material from Immigration New Zealand under the Official Information Act 1982. It included a record of a conversation between an immigration officer and Mr Li on 21 June 2017, in which Mr Li said he “used employer and advisor and just signed the application ... he forgot as it was two years ago. Didn’t mean to lie or mislead”.
[28] It follows A reflects Mr Li’s instructions of 26 June 2017, Ms Lim’s letter of the next day, and Mr Li’s observations to an immigration officer a week later.
[29] Ms Ryan notes A was sent to Mr Li to swear in English. However, Ms Chen telephoned Mr Li beforehand and told him to have someone translate the affidavit to ensure it was “accurate and true”.22 Ms Ryan also notes Ms Lim wrote a letter to Lane Neave dated 7 June 2017, in which Ms Lim said she had not discussed the form with Mr Li, an observation repeated by Ms Lim to an immigration officer on 21 June 2017. But quite apart from the fact Lane Neave does not appear to have received this
20 Again, Lane Neave is in Christchurch; Mr Li, Dunedin.
21 Emphasis added.
22 Mr Li said in C he did not take this step because of time constraints.
letter, Ms Lim’s accounts are materially inconsistent. More importantly, so too are Mr Li’s. C underscores this conclusion:23
I remember being asked about the visa application and why my conviction was not declared. I explained that Ms Lim had filled in the form as I could not understand it because it was in English. I explained that I did not remember to tell Ms Lim about my conviction which had happened in 2015 when she was filling in the form. That was because it was not in my mind that this question was asked in the application form. It therefore did not occur to me to tell Ms Lim about the conviction when she was filling in the form….
[30] Standing back, it is possible to interpret A and C as variants of a poorly expressed theme, in which Mr Li forgot to tell Ms Lim about his conviction, Mr Li having asked her to complete the form in the knowledge such a question was highly likely. But this interpretation does not meet the difficulties identified by the Tribunal—the conviction was recent and atypical for Mr Li. B meets this difficulty but is inconsistent with A; elements of C; Mr Li’s instructions to Lane Neave (as captured in a file note); his observations to Immigration New Zealand (also recorded in writing); and Ms Lim’s first letter. Nor is it clear B advances Mr Li’s position. Mr Li was obliged to complete the form, and to do so honestly. Giving it to another to complete, with no related attempt to check its accuracy, is not consistent with Mr Li’s legal obligations. Viewed either way, the fresh evidence lacks cogency. And absent fresh evidence, Mr Li’s complaints under this head necessarily fail.
[31] The same would be true even if the fresh evidence was admitted. As will be recalled, the Tribunal concluded Mr Li’s explanation lacked credibility. The fresh evidence offers no prospect of a different outcome; rather, it buttresses the Tribunal’s conclusion.
[32] Finally, to justify an appeal, Mr Li must still cross the “triple hurdle” identified by Kos J of an arguable case the Tribunal’s factual findings are wrong; sufficiently grave to constitute an error of law; and comprise a question of general or public importance, or one otherwise warranting appeal.24 The messy factual matrix prosecuted by Mr Li cannot cross this threshold, or that of arguable review the Tribunal erred in fact.
23 Emphasis added.
24 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
[33]The remaining grounds can be dealt with swiftly.
His mother’s illness
[34] Mr Li’s parents and sister live in China. Mr Li provided the Tribunal with a translated—but terse—medical certificate in relation to his mother. It said she suffered:
Coronary heart disease with senile degenerative heart valve disease. Level 3 functional capacity. The patient has multivalvular heart disease, I recommend surgery. Hereby attested.
[35]The Tribunal observed:25
The certificate … record[s] that she has level 3 functional capacity, which indicates that her condition is serious. She would only be comfortable at rest, but less than ordinary activity could cause her fatigue, palpitation, dyspnoea, anginal pain.
[36] The Tribunal noted Mr Li’s 35-year-old sister “may” be able to assist Mr Li to pay for the surgery, and deportation would not preclude Mr Li from continuing to financially support his mother.26
[37] Mr Li contends it is arguable the Tribunal erred in fact and law in concluding his sister could assist in paying for their mother’s surgery. The difficulty with this argument is that the Tribunal made no such conclusion. It simply observed his sister may be able to assist, in circumstances in which Mr Li offered no information about her means (or those of his father). Nor is there an arguable basis to challenge the Tribunal’s conclusion Mr Li could continue to financially support his mother in China. As it observed, Mr Li has previously worked in China as a chef, and while “he is unlikely to earn as much as he is currently earning in New Zealand, the cost of living is likely to be lower in China”.27
[38] Mr Li also contends the Tribunal engaged in procedural impropriety by engaging in ex parte inquiry. Mr Li observes the Tribunal must have done so given its interpretation of the medical certificate; see [34] and [35].
25 Re Li, above n 1, at [18].
26 At [18].
27 At [19].
[39] It is highly likely the Tribunal conducted a simple online search in relation to “level 3 functional capacity”, for, as the respondent observes, such a search returns the information identified at [35].28
[40] The Tribunal has several sources of power to obtain information. It may refer to and admit as evidence any published electronically stored information relating to science (which the Tribunal considers to be a reliable source of information).29 It may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned.30 And, it may receive as evidence any statement, document, information or matter that in its opinion may assist it to deal effectively with a humanitarian appeal before it.31 The Tribunal may also seek information from any source under s 228 of the Act.
[41] Doubt attaches to whether what likely occurred engages any of these. Seeking to define medical terms already in evidence is not synonymous with the admission of evidence. And in a digital age, reference, for example, to the website of the National Heart Foundation for a definition of “level 3 functional capacity” is not greatly removed from more orthodox reference to a medical dictionary. In each instance, the information’s source is reliable—or at least perceived as so. But even if one assumes the likely online inquiry engaged one of the Tribunal’s many powers, there is no evidence the information is inaccurate.
[42] Context is important too. The inquiry was obviously made because Mr Li did not identify what the medical certificate meant, even though it was his case to make.32 Consequently, the inquiry was made to understand Mr Li’s case—not reject it. In
28 National Heart Foundation of New Zealand “New Zealand Guideline for the Management of Chronic Heart Failure 2009 Update” (Publication June 2010)
See also: Professional Heart Daily “Classification of Functional Capacity and Objective Assessment (Published 1994) Professional.heart.org
Act 2006, s 129. Section 129 refers to “A Judge” but s 4 defines “Judge” to include a tribunal. Section 129 is not confined to “proceedings” conducted by Courts only.
30 Evidence Act, s 128(2).
31 Immigration Act, Sch 2, cl 8(1).
32 Immigration Act, s 207(1). See also Faavae v Minister of Immigration HC Auckland M1434/96, HC122/96, 9 May 1997 at pp 15–16.
summary, it is not arguable Mr Li suffered prejudice, even though it would have been preferable for the Tribunal to have identified the source of the definition relied on.
Exceptional humanitarian circumstances
[43] Mr Li contends it is arguable the Tribunal erred in concluding exceptional humanitarian circumstances do not exist. As Ms Ryan observed, support of a vulnerable person by a relative here that would otherwise be unavailable (in the event of deportation) can amount to exceptional circumstances.33
[44] But as with all cases, context is everything. It was open to the Tribunal to conclude Mr Li’s mother’s medical condition, whether alone or in combination with other factors, did not establish exceptional circumstances. The Tribunal had evidence her surgery was recommended. It had no evidence her surgery was essential. In any event, it was open to the Tribunal to conclude Mr Li could support his mother financially even if deported.
[45] The Tribunal’s decision must also be assessed with reference to the limited information Mr Li placed before it. As it noted, little is known about the circumstances of Mr Li’s father and sister.34 This is not to contemplate—still less countenance—the drawing of an adverse inference from “silence”. Rather, it is to acknowledge the statutory prohibition on the Tribunal from allowing an appeal unless “it is satisfied that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported”.35
[46] Finally, this ground and that in relation to Mr Li’s mother’s illness do not give rise to a qualifying question or issue. Each is fact specific. Nor does either generate any other reason to warrant an appeal or review.
33 Doug Tennent, Katy Armstrong and Peter Moses Immigration and Refugee Law (revised 3rd ed, 2017, LexisNexis New Zealand Ltd) at 540.
34 Re Li, above n 1, at [17].
35 Immigration Act, s 207(1)(a) (emphasis added).
Summary
[47] The fresh evidence lacks cogency and buttresses the Tribunal’s conclusion Mr Li’s account lacked credibility. None of the proposed grounds of appeal or review is arguable in context of the threshold imposed by the legislation.
[48]The applications are dismissed.
……………………………..
Downs J
4
3
1