Lin v Chief Executive of the Ministry of Business, Innovation and Employment

[2022] NZHC 3175

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2338

CIV-2021-404-2339 [2022] NZHC 3175

UNDER

Sections 245, 247, and 249 of the

Immigration Act 2009

IN THE MATTER OF

Applications for leave to appeal to the High Court against a determination of the Immigration and Protection Tribunal and/or for leave to apply for judicial review

BETWEEN

YOUYAN LIN

Applicant/Appellant

AND

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT
First Respondent

IMMIGRATION AND PROTECTION TRIBUNAL

Second Respondent

Hearing:

15 November 2022

Appearances:

R E Harrison KC for the Applicant/Appellant E Dowse for the First Respondent

No Appearance by the Second Respondent (Abides and excused)

Judgment:

30 November 2022

JUDGMENT OF POWELL J

This judgment was delivered by me on 30 November 2022 at 11:30 am.

Pursuant to Rule 11.5 of the High Court Rules.

Counsel/Solicitors:

R E Harrison KC, Auckland Nigel L Faigan, Auckland Crown Law, Wellington

………………………… Registrar/Deputy Registrar

LIN v Chief Executive of the Ministry of Business, Innovation and Employment [2022] NZHC 3175 [30 November 2022]

[1]    On 5 November 2021 the Immigration and Protection Tribunal (“IPT”) declined a humanitarian appeal brought by the applicant/appellant, Youyan Lin, against his liability for deportation.1

[2]    In accordance with the Immigration Act 2009, Mr Lin sought leave to challenge the IPT decision by way of both judicial review and appeal. Leave was granted by Harvey J for Mr Lin to both appeal and judicially review the IPT decision on two questions, namely whether the IPT erred in:2

(a)dismissing Mr Lin’s explanations for his fraudulent 2017 visitor visa application; and

(b)determining Mr Lin’s appeal without having been provided with his 2017 visitor visa application.

[3]    Since leave was granted, Mr Lin and the first respondent, Chief Executive of the Ministry of Business, Innovation and Employment (“MBIE”) have been in discussions and now seek orders by consent (with the IPT abiding) allowing the judicial review and appeal, thereby setting aside the decision of the IPT and remitting the humanitarian appeal back to the IPT for further hearing and determination of the following matters:

(a)whether the applicant/appellant’s established exceptional circumstances of a humanitarian nature rendered his deportation unjust or unduly hard; and (if so)

(b)whether in the light of the applicant/appellant’s established exceptional circumstances of a humanitarian nature it would be contrary to the public interest to allow him to remain in New Zealand.

1      Lin v Minister of Immigration [2021] NZIPT 505319.

2      Lin v Chief Executive of Ministry of Business, Innovation and Employment [2022] NZHC 2452 at [66].

[4]    While the fact the parties have reached agreement is significant, it is not determinative, and this Court must still be satisfied there is an appropriate basis to set aside the decision of the IPT in issue.

[5]    In this case, with particular reference to the analysis undertaken by Harvey J, I am satisfied there is a clear basis for the IPT decision to be set aside. In particular, it is beyond any dispute that MBIE breached s 226(2)(b) of the Immigration Act 2009 in failing to supply Mr Lin’s 2017 visitor visa application file to the IPT, which is not only a significant error in its own right but is also significant with regard to the other ground for which Harvey J granted leave. In the circumstances, therefore, I agree it is appropriate to set aside the decision of the IPT as sought by the parties.

[6]    Likewise, I am satisfied that it is appropriate to direct a partial remittance in this case based upon Mr Lin’s undertaking that his circumstances have not changed so as to not require Mr Lin to re-establish that “exceptional circumstances of a humanitarian nature” exist for the purposes of the further hearing of the humanitarian appeal. It is clear that this was not subject to challenge in the original hearing before the IPT and in the circumstances, I consider there is no need for this issue to be revisited.

[7]    I therefore make the orders as sought, on the same terms as the draft orders filed by the parties.

Powell J