Minister of Immigration v Wu

[2017] NZHC 2514

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-003160

CIV-2016-404-001528 [2017] NZHC 2514

UNDER THE

Immigration Act 2009, ss 246(1) and

249B(2)

IN THE MATTER OF

an application for leave to appeal a
High Court decision

BETWEEN

MINISTER OF IMMIGRATION Applicant

AND

DONGMEI WU First Respondent

WEN ZHONG Second Respondent

THE IMMIGRATION AND PROTECTION TRIBUNAL Third Respondent

Hearing:	6 July 2017
Appearances:	K Stephen and B Charmley for the Applicant C Curtis and T Zohs for the First and Second Respondents No appearance by or for the Third Respondent
Judgment:	13 October 2017

JUDGMENT OF HINTON J

MINISTER OF IMMIGRATION v DONGMEI WU [2017] NZHC 2514 [13 October 2017]

This judgment was delivered by me on 13 October 2017 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………

Registrar/Deputy Registrar

Solicitors:

Crown Law, Wellington
Marshall Bird & Curtis, Auckland

Introduction

[1]      The Minister of Immigration seeks leave to appeal a decision of Palmer J.1

Palmer J found that the Immigration Tribunal had erred in failing to consider information  provided  to  it  about  the  status  under  Chinese  law  of  Olivia,  a New Zealand citizen child, and further that the Tribunal had a legal duty to inquire itself into that status.  He therefore allowed the respondents’ appeal and application for judicial review.

[2]      The applicant seeks leave on essentially the same questions on which the respondents were granted leave, leading to the decision of Palmer J.  These questions were reformulated by consent following the present hearing and are as follows:

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” (at [47] of the judgment).

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 (at [65] of the judgment).

[3]      At the conclusion of this hearing, I indicated that I would be granting leave. Counsel for the respondents requested that my decision be delayed to allow for an extended period overseas on her part, to which the applicant consented.

[4]      My decision granting leave now follows.

Background up to and including the Tribunal decision

[5]      In 2008, the first respondent’s older sister, who had been granted citizenship in New Zealand, sponsored both the first respondent and her parents to come to New Zealand   from   China   under   the   Family   (Parent)   category  of   residence instructions.   The first respondent qualified under that category as an unmarried, adult child under a certain age who has no children.  The first respondent and the parents came to New Zealand in August 2010.  A brother, who had a family of his

own and did not qualify under the Family category, remained in China.

1      Wu v Minister of Immigration [2016] NZHC 3194.

[6]      The first  respondent  had  failed  to  disclose to  Immigration  New  Zealand (INZ)  and  apparently  to  her  parents,  that  she  did  in  fact  have  a  partner  (the second respondent)   and   that   together   they   had   a   child,   Xinyuan,   born   in October 2009.   Xinyuan was living in China with the second respondent and his parents.

[7]      If the existence of the first respondent’s child and partner had been disclosed to INZ, the first respondent would not have qualified for a resident visa because the first respondent was not a “dependent child”.  Further, her parents would not have qualified for residence either because they would have had two children in China and only one child in New Zealand.  The “centre of gravity” would have remained in China.

[8]      In September 2012, the second respondent entered New Zealand, along with Xinyuan,  on  a  visitor  visa  granted  on  the  basis  of  his  partnership  with  the first respondent.      In   October   2012,   the   respondents   married.      After   the second respondent came to New Zealand, INZ discovered that the relationship went back to before the first respondent’s residence application.  The second respondent applied for a work visa without success and became eligible for deportation.

[9]      In 2013, the Minister determined that the residence class visas granted to the first respondent and the parents were procured through the concealment of relevant information.   Deportation liability notices were issued in respect of all three on

16 April 2014.

[10]     The parents, the first respondent and the second respondent all appealed to the Tribunal against deportation on humanitarian grounds under s 207 of the Immigration Act 2009 (the Act).

[11]     Between the date of the deportation notice in respect of the first respondent and her parents, and the Tribunal hearing in September 2015, the first respondent conceived and gave birth to a second child, Olivia.  Olivia was born in March 2015 and by virtue of having been born in New Zealand as the child of a New Zealand resident, is a New Zealand citizen.

[12]     The  Tribunal  allowed  the  appeals  of  the  first  respondent’s  parents,  but declined the appeals of the first and second respondents.  The Tribunal found that, in contrast to the parents whom it found did not know when they made their application that the first respondent already had a partner and a child, there were no exceptional humanitarian circumstances in connection with the first or second respondent, or their children.

The basis of the appeals –information about the status of Olivia

[13]     Of key relevance to the appeal before Palmer J and this leave application is the Tribunal’s treatment of information provided to it (after the hearing) and the Tribunal’s obligation to seek other information about Olivia’s status.

[14]     After  the  Tribunal  hearing,  but  before  its  decision,  the  first  respondent contacted the Chinese Consulate in Auckland to enquire about Olivia’s immigration status in China, should Olivia return there with the two respondents.

[15]     Her counsel at the time then emailed the Tribunal Registry and advised:

My client, Ms Dongmei Wu has contacted the Chinese Consulate-General here in Auckland, and she has been told that her youngest daughter, Olivia, who was born in New Zealand, and is a New Zealand citizen, has no right to become a Chinese citizen.

Ms Dongmei Wu tells me that this would mean that she would need to apply for continual visas for her daughter Olivia to remain in China, should the family be returned there.

Ms Dongmei Wu tells me that it has been exceedingly difficult to have any kind of reply from the Consulate-General of China, and a few days ago she was given this advice.

Additionally, I enclose two cases that are relevant precedents to the Wu, Chang, Wu and Zhong appeals.

(Emphasis added and obvious typographical errors corrected)

[16]     The Tribunal said in respect of Olivia:2

[37]      The son-in-law and the younger daughter are also concerned about the status of Olivia if they were to return to China.  They are concerned that because of China’s one-child policy they may have to pay a fine.   They

would also have to pay for her education and for health care, as she is not a

Chinese citizen.

…

[71]     The younger child, Olivia, is in a different position to her older sibling.    …    Accordingly,  she  cannot  be  deported  from  New  Zealand. In theory, if the younger daughter and the son-in-law felt it in Olivia’s best interests, they could allow her to remain in New Zealand in the care of the older daughter in the event that they were deported.   The Tribunal infers, however, in the absence of any evidence to the contrary, that if her parents are required to leave New Zealand, Olivia would most likely accompany them, given that she is still only an infant.

[17]     The Tribunal then referred to the email from the first respondent’s counsel

and said:3

[72]     … 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 the younger daughter’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 the appellants 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]    The younger daughter’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.

[76]     The short point is that the appellants bear the responsibility for establishing their claim and they have not established that they would be forced to bear a penalty for having a second child, or if they did, that any such penalty would be prohibitive.

[77]      The Tribunal also notes that the younger daughter and the son-in-law chose to conceive their second child in the knowledge that they were under investigation as to their liability for deportation.  The possibility of having to return to China with two children must have been readily apparent to them. Their evidence was effectively that such matters were not paramount when considering whether to have another child.  They are entitled to express such views  but,  having  made  that  decision,  can  hardly  point  to  such  a circumstance as being an exceptional humanitarian circumstance.

(Emphasis added)

[18]     As noted, the Tribunal reached the conclusion that there was nothing about the circumstances of the two respondents and their children that amounted to exceptional circumstances.

[19]     They said:4

[93]      The younger child will remain a New Zealand citizen and will be able to visit family here and eventually return here, if that is what she wishes to do.  In the meantime, her parents can make appropriate choices for her in terms of her education.  There is no evidence that she faces any particular health-related or other issues that would pose difficulty for her if she were to return to China in the company of her immediate family.

[94]     Weighing the above, the Tribunal is satisfied that there are not exceptional humanitarian circumstances in connection with the younger daughter, the son-in-law or their children.   On that basis, the younger daughter,  the  son-in-law  and  Xinyuan  do  not  meet  the  threshold  in s 207(1)(a) of the Act, and their appeals must fail.

(Emphasis added)

[20]     The Tribunal declined the appeals of the first and second respondents, but on terms:5

(a)       Given that [Olivia] is a New Zealand citizen, it is possible that the younger daughter or the son-in-law may in future wish to escort her back to New Zealand to visit or for other purposes.   The Tribunal orders, pursuant to section 215(1) of the Act, the removal altogether of the period of prohibition on entry to New Zealand that would

4      Wu v Minister of Immigration, above n 2.

5 At [112].

otherwise  apply  under  section  179  following  the  deportation  of

Wu Dongmei and Zhong Wen from New Zealand.

(b)       Pursuant to section 215(2) of the Act, the removal of the period of prohibition remains subject to section 180(1) (which relates to the repayment of any debt due to the Crown in respect of the costs of deportation).

[21]     Because the Tribunal had allowed the appeals of the parents and because the outcome of the appeals meant that some members of the family would return to China while others remained in New Zealand, the Tribunal ordered under s 216(1)(a) of  the Act  that  the  deportation  of  the  respondents  be  delayed  for  a  period  not exceeding two months, to enable them to get their affairs in order and to enable Xinjuan to complete her academic year without interruption.

The relevant findings of Palmer J

[22]     Palmer  J  granted  leave  to  appeal  and  for  judicial  review,  and  in  his subsequent decision allowing both the appeal and the review application, he found:

(a)      The Tribunal was not legally able to accord no weight to the email information, being 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  which  was  “consistent  with

information on which it had based its own previous decisions”.6

(b)The Tribunal not only had a duty to consider the information it did receive via the email, but at least in the case of a New Zealand citizen child who is not separately represented and relies on the best efforts of their parents, the Tribunal has a legal duty 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

6      Wu v Minister of Immigration, above n 1, at [47]. I note that it is questionable whether the email was consistent with the Tribunal’s previous decisions. In one of those decisions, Guo v Minister of Immigration [2013] NZIPT 600006-7, the Tribunal accepted that a New Zealand citizen child could not obtain Chinese citizenship until she relinquished New Zealand citizenship, which she could only do at age 18, and she could remain in China on a series of visas in the interim.  This is not the same as the email statement:  “Olivia … has  no right to become a Chinese citizen”. Arguably  the  Tribunal’s  finding  at  [73]  is  more  consistent  with  Guo,  albeit  not  well  or sufficiently expressed. However, matters have moved on from there.

citizen child’s rights and interests”.7   (Palmer J referred to “legislative facts” as being general facts, not concerning the immediate parties, which help the Tribunal determine the content of law as a matter of policy.)8

(c)      Although obiter, Palmer J also says that s 228 of the Act does not completely negate the Tribunal’s duties9  and that a duty to rely on foreign law and legislative facts upon which the Tribunal has previously relied in its decisions does not transgress Parliament’s instructions, i.e. does not run counter to s 228 of the Act.10    These comments  were  more  general  and  not  limited  to  the  case  of  a New Zealand citizen child.

Statutory basis for leave application

[23]     The Court can grant leave under ss 246(1) and 249B(2) of the Act where the question or issue is “one that by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for its decision”.

[24]     As recently elaborated by the Court of Appeal in an earlier decision in this proceeding,11  the threshold requires “a question capable of bona fide and serious argument  involving  an  interest  of  sufficient  importance  to  outweigh  cost  and delay”.12

Reasons for granting leave

[25]     In allowing leave to appeal to this Court, Palmer J found that the questions on which the applicant now seeks leave to appeal are questions of law of general or public importance and that it was in the interests of justice that full argument on

them be heard by the High Court.

7      Wu v Minister of Immigration, above n 1, at [48] and [66].

8      At [61], citing Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [9] and fn 9.

9 At [60].

10 At [65].

11     Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667.

12 At [12].

[26]     Ms Curtis, who successfully argued the High Court leave application for the respondents, submits that there is now no issue of general or public importance. This is essentially on the basis that the decision of Palmer J is correct and there are now no outstanding errors of law.

[27]     I agree with Palmer J that the questions raised are of general and public importance, and also agree with the applicant that the questions remain sufficiently important, following the judgment of Palmer J, to merit a further appeal to the Court of Appeal.

[28]     The applicant submits it is seriously arguable that Palmer J erred in finding the Tribunal had to attribute weight to the email, as opposed to considering it, which the Tribunal did.  The attribution of weight to a particular factor is generally a matter for the Tribunal and the applicant says this case does not fall into the recognised exceptions.   The email did not constitute admissible evidence, nor was it substantiated, nor was it, in Mr Stephen’s submission on behalf of the applicant, consistent with previous decisions of the Tribunal.  He says the decision sought to be appealed leaves the door open for an applicant to make any contention unsupported by evidence.

[29]     The second, more important, question concerns the correct interpretation of s 228 of the Act. That section provides as follows:

228     Information Tribunal may consider

(1)      When considering an appeal or a matter, the Tribunal may seek information from any source.

(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.

[30]     The applicant says that the decision of Palmer J materially cuts across s 228

and will cause problems for the Tribunal “across the board”.

[31]     The applicant says it is seriously arguable that Palmer J erred in finding that

the Tribunal is required to take account of “legislative facts” not put before the

Tribunal by either party.  The applicant submits this is contrary to the clear language of s 228.  The word “only” in s 228 was intentionally included to make it clear the Tribunal is under no obligation to make its own inquiries on any issue.

[32]   Against the applicant’s argument that s 228 must prevail are important considerations arising from Olivia’s status as a New Zealand citizen child.  As the Supreme  Court  said  in  Ye  v  Minister  of  Immigration13   the  provisions  of  the United Nations Convention on the Rights of the Child (UNCROC) mean that the provisions of the Act should be interpreted “so that the interests of New Zealand citizen   children   are   always   regarded   as   an   important   consideration   in   the decision-making process”.14   It also stated that “what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test”.15

[33]     The Supreme Court in  Ye held that when the need arises, such as when parents cannot adequately represent the child’s interests, there must be an obligation on state officials to be proactive in identifying those interests so they can properly be taken into account.  The Court said it could not accept the argument that officers are never obliged to look beyond what parents may advance in the interview process.16

[34]     Further,  Olivia  is  not  an  “affected  person”  for  purposes  of  s  228.    Her interests  are  unrepresented  and  on  the  applicant’s  interpretation  of  s 228,  if  no submissions are made on her behalf, her interests could in theory not be taken into account at all.  That is clearly incorrect.  Further, her fate should not turn on whether or not her parents make competent or timely submissions on her behalf.

[35]     Prior to the decision of Palmer J, there does not appear to be a case that determines  how  s  228(2)  sits  vis-à-vis  the  Supreme Court’s  decision  in  Ye.17

Section 228(2) was added after that decision.   In Fernandes v Immigration and

Protection Tribunal,18 which came after s 228(2), the Court of Appeal noted that the

13     Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.

14 At [25].

15 At [25].

16     At [48] and [50].

17     Wu v Minister of Immigration [2016] NZHC 1309 at [56].

18     Fernandes v Immigration and Protection Tribunal [2014] NZCA 52, [2014] NZAR 544.

circumstances in which the Tribunal might be required to take proactive steps had been “carefully spelled out” by the Supreme Court in Ye.19    The Court of Appeal referred to s 228, but without noting the change from the former provision.   The Court in Fernandes did not consider the matter beyond that and did not make any ruling on the point because it said that the question of whether the Tribunal “might have a duty to take proactive steps to make further enquiries” did not arise on the facts of that case.20

[36]     There is also an important question, if Palmer J is correct, of what falls within “legislative facts”.  Mr Stephen says this concept was not referred to at the appeal hearing and that the parties were not given the opportunity to advance argument in that regard.   As the applicant submits, is it then incumbent upon the Tribunal to re-inform itself at each point as to the law and associated policy considerations in the relevant part of the world?  Would this mean the Tribunal would need to inquire into the ability to obtain ongoing visas or the cost of education in the relevant province, or the law on penalties for having a second child?

[37]     The applicant is also concerned with the effect of the wider obiter statements in the judgment.

[38]     The applicant submits that the first proposed question also turns significantly on s 228.  If the Tribunal were required to give weight to an unsubstantiated email, it would in effect have to conduct its own fact-finding exercise on each occasion that an appellant made an assertion of law or fact, thereby rendering s 228 redundant. While I consider this may be an overstatement of the effect of the judgment, I agree that the two questions should be considered together and that s 228 impacts on them

both.

19     Fernandes v Immigration and Protection Tribunal, above n 18, at [33].

20 At [27].

Conclusion

[39]     These are important issues which are seriously arguable and go well beyond this particular case.   The importance of the issues outweighs cost and delay.   I consider leave should be granted for these matters to be considered by the Court of Appeal.

[40] Accordingly, I grant the application for leave to appeal in relation to the questions as expressed above at paragraph [2].

---------------------------------------------------- Hinton  J