Minister of Immigration v Wu
[2019] NZCA 237
•20 June 2019 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA649/2017 [2019] NZCA 237 |
| BETWEEN | MINISTER OF IMMIGRATION |
| AND | DONGMEI WU |
| AND | WEN ZHONG |
| AND | IMMIGRATION AND PROTECTION TRIBUNAL |
| Hearing: | 7 June 2018 |
Court: | Williams, Brown and Clifford JJ |
Counsel: | K G Stephen and K Orpin-Dowell for Appellant |
Judgment: | 20 June 2019 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BWe answer the questions of law as follows:
(a)Whether the High Court erred in its finding that the Tribunal “was not legally able to accord no weight to the only information it apparently had about a New Zealand citizen child’s citizenship status in the country to which its decision would send her”.
No. The High Court was correct to find the Tribunal erred by failing to accord any weight to the information provided by Ms Wu in the particular circumstances of this case. The Tribunal was required to consider that information and, if it chose not to rely on it because it was inconsistent with other information previously available to it, it was required to disclose that other information and provide the first and second respondents an opportunity to respond to it before coming to a final decision.
(b)Whether the Tribunal was obliged, notwithstanding s 228(2) of the Immigration Act 2009, “to seek any information”, including “foreign law and legislative facts”, further to that provided to it by the persons specified in s 228(2) of that Act.
No, but the lack of such obligation was immaterial. The Tribunal was obliged to act consistently when assessing the likely treatment in China of a New Zealand citizen who was the child of parents deported to that country. The view the Tribunal expressed in Guo v Minister of Immigration about that issue was a relevant consideration in this appeal and the Tribunal was required to have regard to it. If new information provided by the appellants suggested that Guo was no longer correct, but the Tribunal intended nonetheless to follow it, the Tribunal was required to disclose that intention and to give the first and second respondents an opportunity to comment further.
CThe case is remitted to the Tribunal for reconsideration of the new information in accordance with this judgment.
DThe appellant must pay the first and second respondents one set of costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Williams J)
Introduction
This is an appeal from a decision of Palmer J, who found that the Immigration and Protection Tribunal (the Tribunal) erred in failing to consider, or consider sufficiently, certain information provided in relation to a New Zealand citizen who was the child of parents who were eligible for deportation.[1]
Background
[1]Wu v Minister of Immigration (No. 2) [2016] NZHC 3194 [High Court decision].
Ms Wu is a Chinese citizen. She entered New Zealand with her parents in August 2010. She did not disclose to Immigration New Zealand that she had a daughter, Xinyuan, in China in the care of Mr Zhong, the child’s father. Had these details been disclosed, she would not have qualified for a resident visa.
Mr Zhong is also a Chinese citizen. In September 2012, he entered New Zealand on a visitor visa granted on the basis of his relationship with Ms Wu. He brought their daughter Xinyuan, then two years old. One month later, Ms Wu and Mr Zhong married. Xinyuan was granted a student visa in order to attend primary school. Mr Zhong obtained a work visa but a further application for a second work visa was declined. He then became eligible for deportation.
In 2013, the Minister of Immigration (the Minister) determined that Ms Wu’s visa was procured through concealment of relevant information. She was issued with a deportation notice on 19 May 2014.
Ms Wu and Mr Zhong appealed to the Tribunal against their deportation notices on humanitarian grounds.[2]
[2]The deportation notices applied also to Ms Wu’s parents, but in Wu v Minister of Immigration [2015] NZIPT 600135-137 [IPT decision] the Tribunal allowed their appeals because they too were unaware their daughter had a child at the time entry into New Zealand was granted. These decisions of the Tribunal were not challenged by the Minister.
Prior to the appeal being heard, in March 2015 Ms Wu gave birth to a second child, Olivia. Olivia is a New Zealand citizen.
Section 207 of the Immigration Act 2009 (the Act) governs humanitarian appeals. It provides as follows:
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.
…
Tribunal decision
The Tribunal found there to be no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for Ms Wu and Mr Zhong to be deported from New Zealand.[3] The Tribunal considered that there was nothing about their circumstances that was “truly an exception rather than the rule” in accordance with the guidance of the Supreme Court in Ye v Minister of Immigration.[4] The Tribunal considered that the evidence did not establish that the children’s nurture, development, socialisation, education and health would be significantly compromised by their residing in China.[5] This assessment, the Tribunal considered, applied to Olivia, even though she is a New Zealand citizen, equally as it did to Xinyuan.[6]
[3]IPT decision, above n 2, at [111].
[4]At [90]; and Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
[5]IPT decision, above n 2, at [91].
[6]At [92]–[93].
The hearing before the Tribunal concluded on 30 September 2015. Then, on 16 October 2015, counsel for Ms Wu and Mr Zhong provided additional information in relation to Olivia’s likely immigration status in China. That information was considered by the Tribunal before it issued its decision on 25 November 2015.
It is the Tribunal’s treatment of that information that was the focus of the appeal in the High Court and in this Court. The Tribunal recorded that it had received further information post-hearing and set out its view of that material. Due to its importance, that aspect of the decision bears setting out in full:
[72] Counsel wrote to the Tribunal after the hearing concluded, on 16 October 2015, to indicate that [Ms Wu] had made contact with the Chinese Consulate General in Auckland. She was apparently told that [Olivia] has no right to become a Chinese citizen, and that it would be necessary for the family to apply for continual visas for [Olivia] to remain in China, should the family be returned there. In that regard, the Tribunal has been provided with no submissions in connection with the law in China, nor was any evidence provided by or on behalf of the appellants on oath.
[73] Given that [Olivia] is the child of two citizens of the People’s Republic of China, the Tribunal is not prepared to accept, at face value, that she could not become a citizen of China or that she could not acquire permanent residence in China. No weight can be given to [Ms Wu’s] unsubstantiated bare assertion to that effect. Nor has any evidence been advanced that establishes that there would be any impediment to [Olivia] obtaining ongoing visas to enable her to remain in China with her parents.
[74] Counsel for [Ms Wu and Mr Zhong] submitted that the Chinese state imposes heavy penalties upon parents of second and subsequent children. Again, however, no evidence was adduced to support that submission. While the one‑child policy adopted by the Chinese state has resulted in the imposition of penalties, this has traditionally varied from province to province.
[75] [Ms Wu’s] brother has, despite his own financial difficulties, recently had a second child, yet no evidence has been adduced to establish whether he has had to pay any penalty. Nor is there any evidence that such penalties are imposed in Hunan or, if so, why the family could not establish themselves in an alternative part of China. If more were needed, China has, in fact, recently revoked the one-child family policy in favour of a two-child family policy: see, for example, Chris Buckley “China Ends One‑Child Policy, Allowing Families Two Children” New York Times (29 October 2015) at by fears that an aging population could jeopardize China’s economic ascent, the Communist Party leadership ended its decades‑old ‘one-child’ policy on Thursday, announcing that all married couples would be allowed to have two children.”
In short, the Tribunal rejected the information conveyed through counsel by Ms Wu as “unsubstantiated bare assertion”, and further commented that there was no evidence ongoing visas would be refused by Chinese immigration authorities, even if the citizenship assertions were true.[7] In relation to the comments made about China’s one-child policy, the Tribunal relied on first its own knowledge that, first, enforcement was variable and treated as a local matter;[8] and second that the one-child policy had been expanded to a two-child policy citing in that respect an article in the New York Times.[9]
High Court decision
[7]At [73].
[8]At [74].
[9]At [75].
Palmer J granted the applications for leave to appeal and to bring judicial review proceedings in the High Court on the following questions of law:[10]
(a)Did the Tribunal err in law, by failing to have regard to relevant considerations, in according no weight to the information provided to it by Ms Wu about the status under Chinese law of Olivia, a New Zealand citizen child?
(b)Did the Tribunal have a legal duty to inquire into the status under Chinese law of Olivia, a New Zealand citizen child of Ms Wu and Mr Zhong, in order to address her interests in deciding on their deportation?
[10]Wu v Minister of Immigration [2016] NZHC 1309 at [63].
Palmer J also heard the substantive appeal.[11] He held that the Tribunal made two errors of law:[12]
First, it accorded no weight to the only information it had about Olivia’s citizenship status in the country to which its decision would send her and which was consistent with information on which it had based its own previous decisions. Second, it failed to consider the foreign law and legislative facts upon which it has previously relied in its decisions, as to the implications of deportation on a New Zealand citizen child’s rights and interests.
[11]High Court decision, above n 1.
[12]At [2].
The Judge considered that the Tribunal’s finding that it was entitled to accord no weight to the information about Olivia’s Chinese citizenship status was inconsistent with prior findings by the Tribunal.[13] The Judge accepted that the Tribunal is generally entitled to determine the weight it attributes to particular evidence but in this case the information Ms Wu provided was consistent with information on which it based its previous decisions,[14] and the Tribunal identified no contrary evidence upon which it might have relied.[15] The Judge held that this information was a relevant consideration and failing to take it into account was unreasonable.[16]
[13]At [45], citing Guo v Minister of Immigration [2013] NZIPT 600006-7 at [160]; and Yev Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [274].
[14]See Guo v Minister of Immigration, above n 13, at [160].
[15]At [46].
[16]At [47].
Palmer J considered that the legislative scheme made it clear the Tribunal did not have a legal duty to make its own inquiries.[17] The language of s 228 of the Act said this expressly.[18] But the Judge considered neither the language nor the purpose of s 228 affected the discretion or duty of the Tribunal to use its own resources.[19] He found that the Tribunal could also rely on “legislative facts” and in this case, should have done so.[20] The Tribunal had, the Judge considered, built up a “considerable institutional knowledge”,[21] and the Tribunal could refer to information it acquired through its own activities.[22] Acting in this way was viewed to be “consisten[t] with the Tribunal’s functions and the purpose of the Act”.[23]
[17]At [60].
[18]At [59(b)].
[19]At [61].
[20]At [61] and [68].
[21]At [62], citing Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA).
[22]At [63].
[23]At [65].
In the particular circumstances of making a decision where a New Zealand citizen child is not separately represented and relies on the best efforts of her parents, Palmer J considered that the Tribunal had a legal duty to consider the foreign law and legislative facts previously relied upon in its decisions as to the implications of the parents’ deportation on the child.[24]
Questions on appeal
[24]At [66].
In a subsequent decision Hinton J granted the Minister leave to appeal the decision of Palmer J to this Court on the following questions of law:[25]
(a)whether the High Court erred in its finding that the Tribunal “was not legally able to accord no weight to the only information it apparently had about a New Zealand citizen child’s citizenship status in the country to which its decision would send her”; and
(b)whether the Tribunal was obliged, notwithstanding s 228(2) of the Immigration Act 2009, “to seek any information”, including “foreign law and legislative facts”, further to that provided to it by the persons specified in s 228(2) of the Immigration Act 2009.
The statutory context
[25]Minister of Immigration v Wu [2017] NZHC 2514 at [2].
It is necessary to set out in some detail the provisions of the Act of particular relevance in this appeal.
We have already referred to the test that must be applied in this case as contained in s 207. An appeal on humanitarian grounds must be allowed by the Tribunal if:[26]
(a)there are exceptional humanitarian circumstances that make deportation unjust or unduly harsh; and
(b)it would not be contrary to the public interest for the appellant to remain in New Zealand.
[26]Immigration Act 2009, s 207(1)(a) and (b).
In its decision in Ye, the Supreme Court made a number of relevant observations about the structure of that test as then contained in s 47(3) of the Immigration Act 1987. [27] The two provisions are not materially different. The first observation was that the Act should be interpreted in a manner consistent with New Zealand’s international human rights obligations, including those contained in the United Nations Convention on the Rights of the Child (UNCROC).[28] By this means, it is accepted that the best interests of any child affected by possible deportation of its parents are a “primary consideration” for the Tribunal, although the Court noted that this directive did not prescribe the weight to be given to that factor in the circumstances of any particular case.[29]
[27]Ye v Minister of Immigration, above n 4.
[28]At [24], citing United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990) [UNCROC].
[29]At [24]–[25]; and UNCROC, art 3(1).
In addition, the majority noted as follows:
[34] … The need for the [humanitarian] circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. …
…
[36] The flavour of the subsection as a whole, with its interweaving of the concepts of exceptional circumstances, injustice or undue harshness and the public interest suggests that Parliament, being mindful of humanitarian considerations, contemplated overstayers being allowed to remain in New Zealand if there were humanitarian circumstances of a sufficiently unusual kind that their remaining would not undermine the general importance of maintaining the integrity of the immigration system. The test was designed to be strict but was seen as representing an appropriate reconciliation of personal humanitarian concerns with relevant aspects of the public interest.
(Footnotes omitted.)
These principles are well settled and not at issue in this case.
It is next necessary to refer to the relevant provisions controlling the functions and processes of the Tribunal.
The Tribunal is established under s 217 of the Act to (inter alia) determine appeals against liability for deportation.[30] It is chaired by a District Court Judge who is joined by such other lawyers as may be appointed by the Governor-General on the recommendation of the Minister of Justice following consultation with the Minister of Immigration.[31] The Tribunal may comprise a single member or a panel for the purpose of considering individual appeals.[32] The Tribunal in this case was a single member.
[30]Immigration Act, s 217(2)(a)(v).
[31]Section 219.
[32]Section 221.
Parliament took care to advise what it considered was the nature of the Tribunal it established under the Act. The Tribunal, according to s 218(1), is a specialist body whose task is to decide appeals by making findings of fact before applying the law to them and making a determination. Further, the Tribunal is empowered to approach its task in either an inquisitorial or adversarial way, or to adopt a combination of the two.[33] It will, it may be inferred, be for the Tribunal to adopt in any particular case the approach that best enables it to discharge its statutory function.
[33]Section 218(2).
Section 226(1) provides that whichever approach is taken, the onus remains on the appellant to make out his or her case:
226 Proceedings on appeal or matter
(1) It is the responsibility of an appellant or affected person to establish his or her case or claim, and the appellant or affected person must ensure that all information, evidence, and submissions that he or she wishes to have considered in support of the appeal or matter are provided to the Tribunal before it makes its decision on the appeal or matter.
Consistently with the Tribunal’s inquisitorial dimension, it is empowered (of its own motion rather than by application of a party) to require the Chief Executive of the Ministry of Business, Innovation, and Employment to provide it with relevant information in relation to any appeal.[34] Further, the Tribunal may choose to rely without further inquiry on findings of credibility or fact in relation to an appellant or affected party made by a previous Tribunal.[35] Such reliance may not be challenged by the individual affected.[36]
[34]Section 229(1).
[35]Section 231(1).
[36]Section 231(2).
By the terms of cl 8 of sch 2, the Tribunal can receive evidence that would be inadmissible in a court of law, although the Evidence Act 2006 applies otherwise. And by the terms of cls 10 and 11 of sch 2, the Tribunal can direct any person authorised by it to inspect documents, require any person including a government agency to produce documents or other information, and may summon witnesses.
Section 228 provides that the Tribunal may seek information from any source. Subsection 2 contains the following important rider:
228 Information Tribunal may consider
…
(2) However, the Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant or the affected person and the Minister, the chief executive, or a refugee and protection officer (as the case may be), and may determine the appeal or matter only on the basis of the information, evidence, and submissions provided by those persons.
That said, the Act does impose some specific procedural duties on the Tribunal. The Chair must ensure that appeals are heard expeditiously.[37] And the Tribunal more generally must determine the matters before it “with all reasonable speed”.[38] According to s 230, if the Tribunal is provided with any information prejudicial to an appellant or affected person, and it proposes to take account of that information, it must give that person an opportunity to consider that information and comment before making its determination:
[37]Section 223.
[38]Section 222(1).
230 Tribunal must disclose prejudicial information
(1) Except as provided in subsection (3), the Tribunal must disclose to the appellant or affected person, and give the appellant or affected person an opportunity to rebut or comment on, information or material that—
(a) is provided to the Tribunal by a source other than the appellant or affected person; and
(b) is or may be prejudicial to the appellant or affected person; and
(c) the Tribunal intends to take into account in determining the appeal or matter.
(2) The Tribunal must set a reasonable time within which the appellant or affected person may rebut or comment on the information or material.
(3)Subsection (1) does not require the Tribunal to disclose any information or material if—
(a)the disclosure would be likely to endanger the safety of any person; or
(b)it is classified information that the Tribunal must keep confidential and must not disclose under section 259.
(4)The Tribunal must, however, notify the appellant or affected person of the fact of any non-disclosure on the grounds specified in subsection (3).
Submissions
In relation to the first question of law, Mr Stephen for the Minister argued that, once the Tribunal considered the information contained in the 16 October 2015 email from counsel, the Tribunal was entitled to give it no weight because as a matter of settled principle all matters of weight are for the assessment of the Tribunal.
Mr Stephen argued that the Judge was in error when he pointed to three matters that, in the Judge’s view, took the case outside established principle:[39]
(a)Olivia is a New Zealand citizen;
(b)the information provided was consistent with information the Tribunal had already received in an earlier case; and
(c)the Tribunal referred to no evidence contrary to the position outlined in the information.
[39]High Court decision, above n 1, at [46].
First, Mr Stephen accepted that, as a New Zealand citizen, Olivia’s interests were to be given primary consideration. But the Tribunal had plainly applied that standard by carefully and separately considering her special position. It was wrong in principle to suggest the primary consideration “standard” dictated the weight to be given to her interests. Second, there was no evidence from Ms Wu that repeat visas would not be granted to Olivia even if the information in relation to the unavailability of Chinese citizenship was correct. Third, the position referred to in the earlier case, (Guo v Minister of Immigration,[40] to which we will return below) was that Chinese citizenship would be available once a New Zealand citizen who is a child of Chinese citizen parents turned 18. The additional information was inconsistent with that proposition and, to the extent of the inconsistency, unsubstantiated.
[40]Guo v Minister of Immigration, above n 13.
For Ms Wu and Mr Zhong, Mr Harrison QC re-cast the issue as one of natural justice. He submitted that summary rejection of the additional information when it was provided in good faith breached the first and second respondents’ natural justice rights. An opportunity ought to have been given, in light of the particular interests involved, for Ms Wu and Mr Zhong to substantiate what the Tribunal dismissed as bare assertion.
In relation to the second question, Mr Stephen argued that the Tribunal had a discretion but no duty to seek further information in addition to that provided by Ms Wu and Mr Zhong and the Chief Executive.[41] In particular it was for Ms Wu and Mr Zhong to prove their case,[42] and the obligation was on them to ensure all relevant evidence was provided to the Tribunal.
[41]Section 228(2).
[42]Section 226(1).
Mr Stephen argued the plain words and legislative history of ss 226 and 228 made the suggestion of a duty to undertake further inquiry untenable, irrespective of whether or not such inquiry related to “foreign law and legislative facts upon which the Tribunal had previously relied”.
Mr Harrison submitted that the issue of further inquiry only arose because the Tribunal had (wrongly) summarily dismissed the new information as unsubstantiated. Although the Judge referred to either a duty to inquire into foreign law and legislative facts or to rely on them in circumstances where such material had been relied on by the Tribunal in the past, Mr Harrison posited a broader and simpler approach. Mr Harrison submitted that there was a qualified duty in these particular circumstances to inquire and investigate where the Tribunal is faced with an obvious information shortfall which in fairness ought to be addressed before the appeal is finally determined. Mr Harrison submitted that depending on the particular circumstances of the case, the shortfall could be addressed by requiring the appellant or Chief Executive (or some other party) to submit further evidence, or by drawing on its own research in relation to foreign law and legislative facts.
It was submitted that the failure to do either of these in this case is the relevant breach of natural justice.
Analysis
Before addressing the specific questions, it is useful to discuss the general propositions of principle that apply to this case.
The Tribunal has a wide discretion to adopt its own procedures. As discussed, it can choose to be adversarial and put the appellants to proof or it can be inquisitorial and undertake its own investigation into the merits of the case before it.[43] It can also choose to play both roles in a single appeal.[44] The Tribunal is accorded this relative freedom because it functions under pt 7 as a “specialist body” whose first task is to make “findings of fact” before applying the relevant law to them and reaching the necessary determinations.[45] All of this is, of course, subject to the procedural constraints expressly provided in the Act, or implied by its purpose, or required by generally applicable principles of administrative law.
[43]Immigration Act, s 218(2)(a) and (b).
[44]Section 218(2)(c).
[45]Section 218(1).
It is unquestionably the position that Ms Wu and Mr Zhong were responsible for making out their case before the Tribunal and, except perhaps in the exceptional circumstances referred to in Ye,[46] that of their children, including Olivia.[47]
[46] Ye v Minister of Immigration, above n 4, at [27]. See also [48]–[50] and [53]. We accept the submission of Mr Harrison that the Act post-dated Ye and was designed to reverse its effect in relation to immigration officers, but no relevant amendments were made to the Tribunal’s predecessor’s power — that is the Removal Review Authority. See Supplementary Order Paper 2009 (32) Immigration Bill (132–2) (explanatory note).
[47]Immigration Act, s 226(1).
It is also the case, as we have noted, that, in accordance with its inquisitorial dimension, the Tribunal can seek information from any source.[48] But it is expressly under no obligation to do so.[49] It is fully entitled to restrict its inquiry to the material provided by the appellant, the Chief Executive, the Minister, or a refugee and protection officer.[50] This in our view is perfectly clear on the plain words of the applicable provisions and it is unnecessary to mine the legislative history of s 228 to address any doubt about that proposition.
[48]Section 228(1).
[49]Section 228(2).
[50]Section 228(2).
Mr Stephen responsibly accepted that the Tribunal cannot be faulted for accepting Ms Wu’s new information for consideration after the conclusion of the appeal hearing. Clause 8 of sch 2, and ss 226 and 228 required the Tribunal to receive and consider any information, evidence or submission provided by Ms Wu or Mr Zhong as long as it was of assistance in the Tribunal’s opinion — a phrase that must be taken to mean relevant to the exercise of the Tribunal’s discretion.[51]
[51]Schedule 2, cl 8.
The Tribunal in this case adopted an approach that was both inquisitorial and adversarial.
This may be seen in the response to a separate ground of appeal advanced before the Tribunal. The ground was that Ms Wu and Mr Zhong could be penalised in China because Olivia was their second child.[52] In relation to that matter the Tribunal made its own inquiries.[53] It cited and relied on a 2015 article in the New York Times.[54] As far as we can tell this article was not formally adduced in evidence. It reported that the long‑standing one child policy in China had been replaced with a two-child policy. There does not appear to have been a supporting affidavit from a relevant expert or official substantiating the report.
[52]IPT decision, above n Error! Bookmark not defined., at [74].
[53]At [75].
[54]At [75].
But in relation to Olivia’s immigration status, the Tribunal adopted an orthodox adversarial approach, referring to the new information from Ms Wu as unsworn, unsubstantiated and unsupported by submissions from counsel.[55] The Tribunal chose to give it no weight accordingly.[56]
Except for the context we are about to address, the Tribunal appears at first glance to have conformed with its statutory requirements.
The Guo decision
As we have seen, it transpired that the Tribunal had in fact heard evidence and reached relevant conclusions on this very point two years and four months earlier in Guo v Minister of Immigration.[57] The member who sat as the Tribunal on the decision challenged before us, was one of the three members of the panel in the Guo case. In that case, expert evidence was given by Dr Anne-Marie Brady, an Associate Professor of Political Science at the University of Canterbury. Dr Brady spoke fluent Mandarin and visited China regularly.[58] Her evidence related in part to the impact on New Zealand citizen children of deportation to China. The Tribunal summarised the relevant aspect of her evidence as follows:[59]
…
(j) Foreign passport-holding children will not have a hukou, the internal “passport” that carries certain entitlements. They will have to regularly reapply for visas to allow them to live with their parents. As adults, they would encounter barriers to, or discrimination in, access to tertiary education, buying property, opening bank accounts, owning shares or starting a business, getting married and obtaining access to militarily-sensitive areas or buildings.
(k) Foreign passport-holding children would not have an identity card, exposing them to the risk of detention by the police.
[55]At [72]–[73].
[56]At [73].
[57]Guo v Minister of Immigration, above n 13.
[58]At [56].
[59]At [62(j) and (k)].
The Tribunal in Guo also undertook its own research as it is fully entitled to do. It referred in its reasons to the Australian Commonwealth Refugee Review Tribunal’s Research Response which it cited as China CHN31574.[60] The paper is dated 13 April 2007. This research summary was prepared by that Tribunal’s Country Research Section on the basis of publicly accessible information. It addressed a number of (probably) common issues that arise in relation to Chinese immigration law and policy.
[60]At [160], citing Refugee Review Tribunal (Australia) RRT Research Response: China (13 April 2007).
One of the questions asked in the document was: “[w]hat is the Chinese government’s position in relation to children born overseas to Chinese nationals?”The paper summarised the position as follows:[61]
The available information suggests that children born overseas to Chinese nationals who are returning to China are generally welcomed. This especially applies to the overseas-born children of returning students or professionals. According to an IRB report, a university anthropologist who has researched the subject of family planning in China told the US Citizenship and Immigration Services that “[i]n general, people who return to China from abroad are actively welcomed back to the ‘motherland’, and children born outside China largely forgiven.”
…
Regarding nationality of children born overseas to Chinese nationals, according to Liu Huawen:
The Nationality law of PRC stipulates that any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality; moreover, any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality...
[61]At [3].
The Tribunal in Guo, drawing the evidence together, then concluded as follows:
[160] The evidence before the Tribunal suggests that Ellen will be able to stay in China on a series of visas (if she wishes to retain her New Zealand citizenship) or obtain Chinese nationality; see Refugee Review Tribunal Research Response China CHN31574 (13 April 2007). We accept that she cannot obtain Chinese citizenship without relinquishing her New Zealand citizenship, which she can only do on attaining the age of 18 years.
The conclusions reached here appear to be a combination of the Tribunal’s findings about the evidence of Dr Brady, the advice in China CHN31574 and the Tribunal’s own knowledge that (it seems) China does not tolerate dual citizenship. This meant that Ellen (the child in that case) would be required to relinquish her New Zealand citizenship upon reaching 18 years in order to obtain Chinese citizenship.
Was the decision-making process procedurally fair?
In light of the cross-over in membership it is very likely indeed that the Tribunal in the current appeal had the information from Guo in mind when it reached its view of the position with respect to Olivia. If so it is, with respect, unhelpful that the Tribunal did not grapple with the substance of the information Ms Wu provided but chose instead to reject it because it lacked appropriate formality and was unsupported by legal submissions or (we assume) other documentation. If the Tribunal was really minded to rely in this appeal on inferences it drew from Dr Brady’s evidence, China CHN31574 and its own assessment in Guo, it needed to say so.
If it had, a procedural question would then have arisen as to whether Ms Wu and Mr Zhong should have been afforded an opportunity to respond to information provided to the Tribunal from sources other than the parties before it or the Chief Executive. One possible source of such obligation may be found in s 230 of the Act. It will be recalled that, by the terms of s 230, prejudicial information provided to the Tribunal from sources other than the parties before it, and which it intends to take into account, must be disclosed. Further, a reasonable time must be provided to the parties to respond to it.[62]
[62]Immigration Act, s 230(2).
An alternative source would be an analogous general fairness obligation to disclose prejudicial material not otherwise known to the appellants, before relying on it. This obligation is referred to in Lal v Removal Review Authority, a case that arose in the context of a humanitarian appeal ground under the Immigration Act 1987.[63] The question McGechan J in that case posed was whether procedural fairness could ever oblige the Removal Review Authority (the Authority), as it then was, to point out a flaw in the appellant’s appeal and to provide an opportunity to rectify it, even though the Authority had a broad discretion as to whether to invoke its inquisitorial powers.[64] The Judge found that “[t]he vision of the [Authority] preferring expediency to just outcome, in cases where the latter readily can be safeguarded, is not an attractive one.”[65] Similarly, in Ye, the Supreme Court was prepared to accept that the Tribunal could, in some circumstances, be obliged to make its own inquiries, if the circumstances and interests involved justified it.[66]
[63]Lal v Removal Review Authority HC Wellington AP95/92, 10 March 1994.
[64]At 21.
[65]At 22.
[66]Ye, above n 4, at [27] applying the materially similar ss 18F(2) and 129P of the Immigration Act 1987 in relation to the Residence Review Board and Refugee Status Appeals Authority; and n 46 above.
We acknowledge, as did the Judge in Lal and the Supreme Court in Ye, that it cannot be the Tribunal’s responsibility to give notice of every reservation or concern that it may have about an appeal or to provide appellants with iterative opportunities to marshal further evidence to meet those concerns.[67] Not only would that be impractical given the workload of the Tribunal, it would also be inconsistent with the statutory provisions already traversed. The proposition is a narrower one than that, and necessarily a matter of fact and degree in light of context and the requirements of justice.
[67]Lal v Removal Review Authority, above n 63, at 24; and Ye, above n 4, at [27]. See also DO v Immigration and Protection Tribunal [2016] NZHC 3158 at [65]–[66].
To the extent that the Tribunal may be taken to have considered information provided to it by witnesses in a different appeal, we consider s 230 applied. We acknowledge this is an extension of the manner in which s 230 is usually deployed.[68] However, if there is any doubt about whether information obtained in a separate appeal was “provided” for the purposes of s 230, the statutory context, including the existence of s 230, means that the Tribunal was subject to an analogous obligation in any event, as a matter of procedural fairness.
[68]Authorities have generally applied s 230 in circumstances where information was received from the police, Immigration New Zealand, family members or anonymous sources, not the Tribunal itself. See for example EG v Immigration and Protection Tribunal [2018] NZHC 1653; VT (Skilled Migrant) [2018] NZIPT 204560; Chand [2017] NZIPT 503489; AT (Afghanistan) [2017] NZIPT 502986; Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721; and KO (Partnership) [2015] NZIPT 202214.
It does not seem procedurally fair to rely on information obtained as an inquisitor (for example China CHN31574), and then, adopting an adversarial approach, reject information inconsistent with it, not because of the inconsistency, but because it is unsworn and unsubstantiated. Such a process is unreasonably opaque. Whether inquisitorial or adversarial, it is a basic requirement that the Tribunal must be transparent.
Furthermore, there is a troubling potential incongruity between the new information from Ms Wu and the basis for its rejection in the Tribunal’s reasons. It is not clear whether Ms Wu was suggesting Olivia could never become a Chinese citizen or simply that she would have to wait until she had turned 18 to make that election. If the new information was intended to convey that Chinese immigration law or policy had changed since Guo, and this could be substantiated with further evidence, that would have gone to the core of the Tribunal’s reasoning with respect to Olivia. Given that this could have been readily clarified by an exchange of emails with Ms Wu, the prospect that the Tribunal might be allowed to make such a fundamental error without correction is, to use McGechan J’s words, “not an attractive one”.[69]
[69]Lal v Removal Review Authority, above n 63, at 22.
If on the other hand, Ms Wu’s suggestion had merely been that Olivia could not get Chinese citizenship until 18, and in the meantime would suffer the burden of repeated applications for visitor visas, the Tribunal could have rejected that evidence without criticism, using the reasons adopted in Guo.
The ambiguity is unsatisfactory, even in light of the obligation on appellants in s 226(1) of the Act to establish their case. Furthermore, as we have said, the additional step the Tribunal could have taken to clarify matters was not burdensome.
A further possibility is that the information from Guo had no bearing on the Tribunal’s decision in this case. The Tribunal member who was a member of the panel in Guo might simply have forgotten about the relevant information obtained in that earlier decision. If so, that, in our view, would also be unsatisfactory.[70]
[70]This is especially so given the Tribunal referred at [96] of the IPT decision, above n 2, to the Supreme Court’s decision in Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 as authority for a different proposition.
We agree with Palmer J that the information upon which the Tribunal relied in Guo was a relevant consideration for the Tribunal in this case and had to be taken into account.[71] It was, of course, for the Tribunal to decide whether to accept that information as conclusive or to use its inquisitorial powers to make further enquiries in light of the new information provided by Ms Wu so as to determine whether the Guo information was still correct. The point is that the Tribunal had to make that call transparently and failed to do so. As the Supreme Court noted in Ririnui v Landcorp Farming Ltd, consistency of treatment is an “important principl[e]” of public administration.[72] That is, similar cases should expect to be treated similarly and different outcomes should be based upon the existence of distinguishing characteristics. Implicit in that is a requirement that reasoning applied to resolve like cases should also be generally consistent. It would be inconsistent for the Tribunal to rely on specific information to support findings about a New Zealand citizen child’s immigration status in China in Guo but not to do so in the present case whose characteristics are materially similar.
[71]High Court decision, above n 1, at [66].
[72]Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [93].
Once again, this approach to decision-making is too opaque.
Conclusion
It will be seen that although we have come to the same result as the High Court, we have done so for different reasons. In particular in our view, this is not a case about a duty to inquire into foreign law or “legislative facts”.[73] Nor is it necessarily a case about failure to properly consider the new information. Rather, this is a case about two obligations. First the duty to provide proper reasons applied consistently in materially similar cases. Second, where those reasons include reliance on prejudicial information provided to or obtained by the Tribunal outside the confines of the appeal before it, the prior obligation to disclose that information and to allow the appellant time for comment.
[73]See K Davis “An approach to problems of evidence in the administrative process” (1942) 55 Harv L Rev 364 at 402–410. This is not a case in which the “legislative facts” referred to in Guo would necessarily have helped the appellants. The Tribunal in Guo relied on the paper of the Refugee Review Tribunal (Australia), above n 60, which found that “children born overseas to Chinese nationals who are returning to China are generally welcomed” and “shall have Chinese nationality”. Guo adopted these findings at [160]–[161] to support the conclusion that the child in that case could remain in China on a series of visas (if she wished to retain New Zealand citizenship) or could obtain Chinese nationality. Relying explicitly on these “legislative facts” is unlikely to have yielded a different result in the present case where the real question is whether these “legislative facts” are no longer correct as China’s position on the status of New Zealand-citizen children has changed.
It may seem counter-intuitive to require the Tribunal to have regard to a previous finding that would appear to support the conclusion now challenged. But such requirement is decisive in this case because being transparent would have triggered the procedural safeguard of providing Ms Wu and Mr Zhong an opportunity to comment on the finding and its grounds. In the end we have come to agree with Mr Harrison that the Tribunal’s error was in failing to accord Ms Wu and Mr Zhong natural justice.
Result
The appeal is dismissed.
We have fashioned our answers to the questions posed as follows in light of that conclusion:
(a)Whether the High Court erred in its finding that the Tribunal “was not legally able to accord no weight to the only information it apparently had about a New Zealand citizen child’s citizenship status in the country to which its decision would send her”.
No. The High Court was correct to find the Tribunal erred by failing to accord any weight to the information provided by Ms Wu in the particular circumstances of this case. The Tribunal was required to consider that information and, if it chose not to rely on it because it was inconsistent with other information previously available to it, it was required to disclose that other information and provide the first and second respondents an opportunity to respond to it before coming to a final decision.
(b)Whether the Tribunal was obliged, notwithstanding s 228(2) of the Immigration Act 2009, “to seek any information”, including “foreign law and legislative facts”, further to that provided to it by the persons specified in s 228(2) of that Act.
No, but the lack of such obligation was immaterial. The Tribunal was obliged to act consistently when assessing the likely treatment in China of a New Zealand citizen who was the child of parents deported to that country. The view the Tribunal expressed in Guo v Minister of Immigration about that issue was a relevant consideration in this appeal and the Tribunal was required to have regard to it. If new information provided by the appellants suggested that Guo was no longer correct, but the Tribunal intended nonetheless to follow it, the Tribunal was required to disclose that intention and to give the first and second respondents an opportunity to comment further.
The case is remitted to the Tribunal for reconsideration of the new information in accordance with this judgment.
The appellant must pay the first and second respondents one set of costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Crown Law Office, Wellington for Appellant
Marshall Bird & Curtis, Auckland for First and Second Respondents
11
7
0