Minister of Immigration v Zhang
[2013] NZCA 487
•16 October 2013 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA296/2013 CA466/2013 [2013] NZCA 487 |
| BETWEEN | THE MINISTER OF IMMIGRATION |
| AND | HAO ZHANG |
| Hearing: | 24 September 2013 |
Court: | Harrison, White and Miller JJ |
Counsel: | M J Andrews for Appellant |
Judgment: | 16 October 2013 at 10 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe judgment of the High Court is set aside and the decision of the Immigration and Protection Tribunal is reinstated.
CThere is no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
Hao Zhang was born in China in 1987. He came to New Zealand with his mother in late 2002 when he was aged 15 years. His parents were divorced and his father remained in China. In late 2003 Mr Zhang and his mother were granted permanent residence in New Zealand when his mother remarried a New Zealand citizen.
In October 2009 Mr Zhang pleaded guilty to one charge of conspiring in May 2008 to import a class C controlled drug. He was sentenced to a term of 18 months imprisonment.[1] He was eligible for deportation because he had been sentenced to a term of imprisonment of more than a year for an offence committed within five years of being granted residence.[2]
[1]R v Zhang DC Auckland CRI-2009-004-2594, 19 November 2009.
[2]Immigration Act 1987, s 91(1)(c).
In July 2010 the Minister decided to deport Mr Zhang and made an order accordingly. Mr Zhang appealed unsuccessfully against the order to the Immigration and Protection Tribunal (the Tribunal).[3] He appealed against that decision to the High Court and concurrently applied for an order judicially reviewing it.[4] Duffy J allowed Mr Zhang’s appeal and granted his application for judicial review. She quashed the Tribunal’s decision and ordered that the proceeding be remitted for rehearing before a differently constituted body.
[3]Zhang v Minister of Immigration [2012] NZIPT 500078 [Tribunal decision].
[4]Zhang v Minister of Immigration [2013] NZHC 790.
The Minister now appeals against the decision granting Mr Zhang’s application for judicial review (CA269/2013) and with leave under the Immigration Act 2009 (the 2009 Act) (CA466/2013) against the decision allowing the appeal.[5] While supporting the judgment, Mr Zhang submits alternatively that this Court has no jurisdiction to determine the appeal. While a jurisdictional objection would normally be addressed first, we consider that its context will be better understood if we consider it after determining the Minister’s substantive appeal.
Appeal rights
[5]Zhang v Immigration and Protection Tribunal [2013] NZHC 1573.
The order deporting Mr Zhang was made under s 91(1) of the Immigration Act 1987 (the 1987 Act), which has since been repealed and replaced by the 2009 Act. The transitional provisions in s 446(2) of the 2009 Act applied, requiring determination of Mr Zhang’s rights of appeal according to the 1987 Act.
An appeal to the Tribunal under s 104 of the 1987 Act is by way of rehearing. The Tribunal has no power to consider the merits of the Minister’s decision to make the deportation order. The Tribunal may only quash a deportation order if it is satisfied “that it would be unjust or unduly harsh to deport the appellant from New Zealand, and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand”.[6]
[6]Immigration Act 1987, s 105(1).
Section 105(2) identified the following mandatory factors to which the Tribunal must have regard when considering whether deportation would be unjust or unduly harsh:
(a)the appellant’s age:
(b)the length of the period during which the appellant has been in New Zealand lawfully:
(c)the appellant’s personal and domestic circumstances:
(d)the appellant’s work record:
(e)the nature of the offence or offences of which the appellant has been convicted and from which the liability for deportation arose:
(f)the nature of any other offences of which the appellant has been convicted:
(g)the interests of the appellant’s family:
(h)such other matters as the Tribunal considers relevant.
Tribunal decision
The Tribunal’s decision, which ran to 16 pages, identified as the primary issue:[7]
... whether [Mr Zhang’s] humanitarian circumstances, particularly the length of time he has spent in New Zealand and his potential separation from his mother, outweigh the gravity of the offending.
[7]At [3].
The Tribunal noted that the starting point for its consideration was the offence which prompted the deportation order and the sentence imposed, to be followed by a balancing exercise between the seriousness of the offending and the humanitarian factors favouring Mr Zhang remaining in New Zealand;[8] identified its obligation to have regard to the family’s protection as the fundamental group unit in society where family interests were at issue;[9] recited in comprehensive detail Mr Zhang’s case including consideration of his circumstances and those of his mother and stepsister;[10] and also referred to the existence of psychological evidence on the likely adverse impact of Mr Zhang’s deportation on him and his family.[11]
[8]At [7].
[9]At [8].
[10]At [9]–[35].
[11]At [36], [42] and [59].
The Tribunal made these findings about the interests of Mr Zhang and his family:
[61] As for [Mr Zhang’s] stepfather, he feels a sense of responsibility and guilt at the present situation. The Tribunal acknowledges that if [Mr Zhang] is deported, his mother’s distress will also affect [Mr Zhang’s] stepfather and her married relationship. [Mr Zhang’s] stepsister will also miss him. She has expressed concern about [Mr Zhang’s] isolation in China, where she believes he will have no real support.
[62] However, it cannot be overlooked that all the rest of [Mr Zhang’s] family, other than his mother, live in China. In her evidence, his mother minimised the degree to which her family would be able to help [Mr Zhang], more often it appeared, for reasons to do with her own personal grievances against them, rather than any direct refusal by her family to assist [Mr Zhang]. [Mr Zhang] also has independent relationships with his father, his father’s parents and other paternal family members, which his mother is not in a position to foster.
[63] While it is accepted that [Mr Zhang’s] preferred parent is his mother, and his mother insists that his father will not help him in China, it remains that [Mr Zhang] lived with his father after his parents were separated (between the ages of 12 and 15), that he went back to live with him (although it is accepted that he did not always stay with him) for seven months in 2005 and that he is now an adult man whose relationship with his father can develop (or not), independently of his mother.
The Tribunal then articulated its factual findings relevant to the balancing exercise. In summary, it found that (a) while Mr Zhang’s offending was not at the upper end of the scale of drug importation, it was serious;[12] (b) by reference to the material humanitarian circumstances, Mr Zhang was now settled in New Zealand, having been here for more than nine years during a formative period of his life;[13] (c) Mr Zhang’s expectations and plans for his future here will be dashed if he is deported; (d) but, nevertheless, he would be able to create a livelihood for himself in China.
[12]At [65]–[66].
[13]At [67].
While deportation would be distressing for Mr Zhang and his mother, the Tribunal was satisfied that the two would be able to remain in close contact,[14] and concluded that:
[69] As already noted, international law recognises that families are to be protected against arbitrary or unlawful interference. However, in this case, the Tribunal does not consider that deportation is a disproportionate response to [Mr Zhang’s] offending, even taking into account his and his mother’s very close bond. [Mr Zhang] is 24 years old, has lived for long periods in the past without his mother, is artistic, entrepreneurial, and has qualifications and work experience in a useful trade. While his relationship with his mother is strong, he is appropriately recognised as an adult and can be expected to live independently of her, particularly given that his father and other relations will be available to him in China, albeit in not such overtly supportive roles as his mother.
[70] Weighing the nature and seriousness of [Mr Zhang’s] offence against his personal and family circumstances, most particularly his relationship with his mother and the time he has spent in New Zealand, the Tribunal finds that it would not be unjust or unduly harsh for [Mr Zhang] to be deported.
[14]At [68].
The Tribunal observed that this finding on the first limb of the statutory test was determinative. However, in fairness to Mr Zhang and presumably against the contingency of an appeal, it considered whether, if he had met the first limb of the test, it would not be contrary to the public interest to allow him to remain here given his low risk of reoffending. It found for Mr Zhang on this second limb.[15]
Appeal
[15]At [71]–[77].
Mr Zhang applied to the High Court under s 245(1) of the 2009 Act for leave to appeal the Tribunal’s decision “as being erroneous in point of law”. Section 245 further provides:
(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
(4) On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may then—
(a)confirm the decision in respect of which the appeal has been brought; or
(b) remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or
(c)make such other orders in relation to the matter as it thinks fit.
(Emphasis added.)
In a document later filed in the High Court, Mr Zhang’s counsel identified these three questions of law for determination:
1.Did the ... Tribunal err in applying ss 105(2)(c) and (g) of the 1987 Act by failing to take into account the effect of domestic violence by Mr Zhang’s father on Mr Zhang and his mother?
2.Did the ... Tribunal err in law by not confining itself to evidence of offending within the terms of s 105(2)(3) and (f) of the 1987 Act?
3.Did the ... Tribunal err in applying s 105(1) of the 1987 Act by failing to consider whether Mr Zhang would be at risk of being
re-tried for the offence for which he was convicted and rendered liable to deportation if returned to China?The Minister consented to Mr Zhang’s application and Ellis J later made an order on the papers accordingly.
Mr Zhang concurrently applied to the High Court to judicially review the Tribunal’s decision. Arguably, his statement of claim did not disclose a cause of action. However, the Minister did not apply to strike out the proceeding or challenge Mr Zhang’s right to seek judicial review in circumstances where he had already appealed the Tribunal’s decision.
Mr Zhang’s statement of claim in the judicial review proceeding seemed to be based upon two discrete factors. One was an allegation that the Tribunal relied on an incorrect summary of facts relating to Mr Zhang’s offending and accordingly took into account irrelevant circumstances.[16] The other was that a registered psychologist had provided evidence of abuse inflicted by Mr Zhang’s father on Mr Zhang and his mother.
[16]This assertion was itself factually wrong. Mr Zhang’s counsel provided the Tribunal with the correct amended summary of facts prior to the hearing: Tribunal decision, above n 3, at [37], and the Tribunal expressly determined his appeal by reference to the amended summary: at [50].
Mr Zhang’s statement of claim concluded with this recital of the grounds on which he sought judicial review:
The Tribunal was under a duty of care to take into account the actual nature of the offence or offences of which [Mr Zhang] had been convicted and for which the liability of deportation arose. The Tribunal erroneously found that [Mr Zhang] would be able to have a good relationship with his father and in relation to those parts of [Mr Zhang’s] claim which the Tribunal found credible, the Tribunal failed to give proper genuine and adequate consideration to the cumulative nature and effect of the different interactions he and his mother have experienced at the hands of his father in China and in relation to those parts of [Mr Zhang’s] claim which the Tribunal found credible, the Tribunal failed to give proper genuine and adequate consideration to the cumulative nature and effect of the conviction entered in New Zealand and the effect upon [Mr Zhang] when returned to China because of those convictions.
High Court
Without giving reasons, Duffy J dismissed Mr Zhang’s primary complaint that the Tribunal erred in law in these words:
[7] I have considered the grounds that Mr Zhang relies on in his appeal and the statement of claim for the judicial review proceeding. I consider that none of them establish that the Tribunal’s decision was erroneous in point of law. Instead, Mr Zhang’s arguments do nothing more than to attempt to argue against the merits of the Tribunal’s decision.
This conclusion, despite its summary nature, might be thought determinative of Mr Zhang’s appeal and application for judicial review. However, the Judge continued immediately in the same passage to state:
… in the course of hearing from the parties, it became clear to me that the Tribunal’s decision was erroneous in point of law in one regard: namely, it did not give adequate reasons for why the Tribunal concluded that it would not be unjust or unduly harsh to deport Mr Zhang from New Zealand. I raised this concern with counsel during the course of the hearing. I consider that having done so, it is open to me to determine the appeal on this basis.
After traversing the Tribunal’s decision, the Judge observed:
[17] I consider that the outcome of the appeal must have been finely balanced. I say this because the evidence of Mr Zhang’s personal and family circumstances seemed to me to strongly support him not being deported. At the same time, the offending for which he was sentenced to 18 months’ imprisonment, whilst serious, is at the lower end of offending that can lead to deportation. The threshold for such offending is a sentence of imprisonment of 12 months or more and Mr Zhang exceeded the threshold by no more than six months. When all the factors set out in s 105(2) are taken into consideration, there is no particular factor that clearly points in favour of the order not being quashed.
The Judge addressed in some detail Mr Zhang’s offending. She observed that it “involved no more than conspiring to import a class C controlled drug” and that despite the statutory presumption “Mr Zhang would have been eligible to serve a sentence of home detention”.[17] After criticising the Tribunal’s findings of fact (at [67] of the Tribunal’s decision),[18] the Judge said this of its conclusion on the statutory balancing exercise:
[23] The outcome is based on superficial and conclusory reasoning, which does little more than declare that the seriousness of the offending outweighs the evidence of humanitarian circumstances. The outcome is also influenced by the Tribunal’s confidence that Mr Zhang will be able to make a go of it successfully in China, despite no basis for this confidence being expressed in the decision beyond recognition of Mr Zhang’s skill set and English speaking ability.
[17]At [18].
[18]At [20].
The Judge elaborated on her criticism of the Tribunal for failing to properly express its conclusion that it would not be unjust or unduly harsh to deport Mr Zhang[19] before concluding:
[28] Thus, it is not immediately apparently why the Tribunal concluded that the weighting of the s 105(2) factors before it favoured the conclusion that it would not be unjust or unduly harsh for Mr Zhang to be deported. Whilst the weight attached to individual factors taken into account in a reasoning process is always a matter for the decision-maker, too excessive, or too insufficient weight going one way can result in a decision being unreasonable ...
But without having the reasoning process disclosed, it is not possible to say if the decision could be successfully challenged on the ground of unreasonableness. Thus, the absence of reasons might have deprived Mr Zhang of an available ground of appeal (being a point of law) or judicial review. On the other hand, absence of reasons can support the view that a decision is one that no reasonable decision-maker could reach. ...
This ground of review was not advanced at the hearing.
[29] When there is little in the way of considerations that favour not quashing a deportation order, it may be sufficient for the Tribunal simply to say that the nature and seriousness of the offence outweighs the personal and family circumstances of an appellant. But when the evidence of personal and family circumstances favouring [Mr Zhang] remaining in New Zealand is strong, is supported by independent expert evidence, and none of this evidence is rejected for being unreliable or not credible by the Tribunal, it seems to me that more expressive reasons are required for reaching the conclusion that the deportation order should stand. This is particularly so when the criminal offending was not of the most serious kind. Indeed, in terms of the offending under the Misuse of Drugs Act, it was relatively low level criminal offending, being conspiring to import a drug in the least serious category of illegal drugs in Schedule 3 of this Act. The nature of the seriousness of the offence is also reflected in the term of imprisonment that was imposed. To be vulnerable to deportation, the sentence of imprisonment must be more than 12 months. Here, Mr Zhang received 18 months’ imprisonment. Whilst this is over the threshold, it is so by no great margin. Thus, this is not a case where the seriousness of the offending and so the heavy weight to be attached to it in favour of deportation speaks for itself. In circumstances where the seriousness of the offending will not attract unduly proportionate weight, and where there are strong factors favouring the appellant remaining in New Zealand, I consider that fairness requires the Tribunal to set out expressly and adequately why it has concluded that the deportation order should stand: see R v Secretary of State for the Home Department ex p Duggan [1994] 3 All ER 277 at 287. By not doing so and for the reasons expressed in Lewis, I consider that the Tribunal has erred in point of law.
[30] This finding of an error of law is sufficient for Mr Zhang to succeed in his appeal and in his judicial review. Insofar as there may be thought to be some constraint on treating the grounds of appeal as amended in this way, there is no such restraint when it comes to judicial review. As part of its supervisory jurisdiction over tribunals of inferior jurisdiction, this Court has a duty to correct errors of law that come to its attention in a judicial review claim, even when they were not at the forefront of a plaintiff’s claim. The Judicature Amendment Act 1972 had a procedurally liberating effect in this regard.
[19]At [27].
The Judge described this error as procedural[20] and directed that Mr Zhang’s appeal be considered afresh by a differently constituted Tribunal. She allowed both the appeal and the application for judicial review.
Decision
(a) Appeal
[20]At [31].
The Minister applied for leave to appeal to this Court against the judgment as being erroneous in law,[21] primarily in finding that the Tribunal gave inadequate reasons for its decision. Duffy J granted leave to appeal on the ground that, while the appeal did not raise any questions of public or general importance, the Minister did not require leave to appeal her decision granting Mr Zhang’s application for judicial review.[22]
[21]Immigration Act 2009, s 246.
[22]Zhang v Immigration and Protection Tribunal, above n 5.
It is unnecessary for us to address in detail Mr Andrews’ arguments in support of the Minister’s appeal. As we have noted, Duffy J dismissed Mr Zhang’s appeal on the three questions of law upon which leave was granted, and Mr Ellis in supporting her judgment does not contend that the Judge erred in that respect. The High Court’s powers on appeal are strictly circumscribed by s 245(4). Its jurisdiction is limited to determining a “question or questions of law arising in the proceedings”. The Judge had no power to determine a question for which leave had not been given, leading to her error in purporting to allow the appeal on the ground of a procedural error – that is for failing to give reasons.
That conclusion leaves only Mr Zhang’s application for judicial review for consideration. We have already identified the deficiencies in his statement of claim. His pleaded grounds confused the tortious concept of a duty of care, an allegedly erroneous finding of fact that Mr Zhang would be able to enjoy “a good relationship with his father” if he returned to China, and an alleged failure to give proper consideration to the effect of his conviction on him when he was deported to China.
Duffy J was right not to grant judicial review on any of the three pleaded grounds. Whether considered separately or together, they do not establish an arguable cause of action. Instead, as she acknowledged, the Judge relied upon a new ground which was not raised by the pleadings or by counsel. It was generically described as a failure to give reasons or alternatively in giving inadequately expressed reasons, rendering the Tribunal’s decision unreasonable in the administrative law sense.
We respectfully disagree with the Judge’s conclusion. There was no justiciable basis for impugning the Tribunal’s reasoning, either in its quality or in its process. It is unnecessary to do more than refer back to our recital of the Tribunal’s reasoning process and relevant passages from its decision.[23] In our judgment the decision was carefully and fully reasoned, and the Tribunal’s analysis complied in all respects with the statutory requirements. The Tribunal certainly identified sufficient reasons to show that it had directed its mind to the applicable test.[24]
[23]At [8]–[12] above.
[24]Chief Executive of the Department of Labour v Taito [2006] NZAR 420 (CA).
We would add that the Tribunal is a specialist body. Section 105(1) of the 1987 Act required it to undertake an evaluative exercise, balancing various factors before reaching a conclusion on whether deportation would be unjust or unduly harsh. Its decisions are necessarily value judgments based on applying the statutory criteria to the relevant facts. In some cases the Tribunal may be unable to say much more than that, having completed that evaluative exercise, it has reached a decision. Here, however, the Tribunal went considerably and appropriately further.
Mr Andrews submitted that in characterising the Tribunal’s reasoning as absent or defective, the Judge was in reality conducting a merits review. He gave the example of her view that the evidence strongly favoured allowing Mr Zhang to stay in New Zealand. His submission has force. The tightly circumscribed nature of the High Court’s powers on appeal excludes a merits assessment, and it is not to the point that a superior judicial body disagrees with either the result or the quality or substance of the reasoning process.
In this Court Ms Curtis effectively sought to uphold the judgment on another ground. She submitted that the Tribunal erred in law in treating Mr Zhang’s father as a member of Mr Zhang’s family for the purposes of s 105(2)(g), and that Mr Zhang’s father had no interest which might justify consideration. However, irrespective of whether Mr Zhang’s father was a member of his family within the statutory ambit, the Tribunal gave no weight to his interests at all in the humanitarian appraisal; it simply found that he would be available to his son when the latter returned to China.
Mr Ellis submitted that the Judge’s conclusion satisfies the orthodox grounds for allowing judicial review for either unreasonableness or failing to take proper account of a relevant consideration, even though neither was pleaded or particularised in any sense. However, the first ground cannot be sustained given our satisfaction that the Tribunal’s decision was properly reasoned; and the second or alternative ground fails because the weight to be given to particular factors was solely within the Tribunal’s statutory function, especially as it had heard all the evidence over two days and the decision itself articulates the Tribunal’s ordered identification and appraisal of the statutory criteria.
We are satisfied that Duffy J erred in quashing the Tribunal’s decision.
(b) Jurisdiction
Mr Ellis, who did not appear before the Tribunal or in the High Court, submitted that the decisions made by both bodies were nullities. That was because the Tribunal was improperly constituted by three members rather than one. As a result, it had no jurisdiction to hear Mr Zhang’s appeal, that error tainted all subsequent events and this Court has no jurisdiction to determine the Minister’s appeal.
Mr Ellis relied upon the transitional provisions of s 446 of the 2009 Act which materially states:
(5) If the appeal has not been set down for hearing by the Deportation Review Tribunal or allocated to a member of an appeals body (other than the Deportation Review Tribunal), the appeal must be determined by a member of the Tribunal.
(6) Subsections (3), (4), and (5) apply unless the Chair of the Tribunal determines otherwise.
The 1987 Act had established the Deportation Review Tribunal (the DRT), the Removal Review Authority, the Residence Review Board, and the New Zealand Refugee Status Appeals Authority. Under s 217(1) of the 2009 Act all their functions were combined within the new Tribunal, which now decides all immigration, deportation, refugee and protection appeals in New Zealand.
Under the 1987 Act all appeals to the DRT were to be heard by a panel of three members. Section 221 of the 2009 Act introduced a significant change. It provided that all appeals were to be heard by the Tribunal consisting of one member unless the Chair directed that “because of [its] exceptional circumstances ...” the Tribunal should comprise more than one but not more than three members.
By virtue of the transitional provisions of s 446 only one member was to hear an appeal which had not been set down for hearing by the DRT “unless the Chair ... determines otherwise”. Mr Zhang had lodged his appeal to the DRT on 17 July 2010 when the 1987 Act was still in force. It had not been set down when the 1987 Act was repealed on 29 November 2010.
A report filed in this Court by the Tribunal’s Deputy Chair explains that the Chair made a blanket or “generic” decision that all appeals lodged with the DRT prior to the commencement of the 2009 Act would be determined by three members. Its purpose was both “for new member training purposes and also out of fairness to all who had lodged appeals to the DRT expecting their appeals to be heard by a panel of three”. Because the decision was generic, the Chair did not reduce it to writing.
There can be no doubt that the Chair made a determination in terms of s 446(6) of the 2009 Act. As a body of inferior jurisdiction, the Tribunal is required to act within the bounds of its constitutive statute. To “determine” something imposes a low threshold. The Oxford English Dictionary defines to “determine” as “…to conclude, settle, decide, fix”; an alternative meaning is “to come to a judicial decision; to give a decision; to decide”.[25] The Chair’s determination was that Mr Zhang’s appeal was to be heard by a panel of three members.
[25]John Simpson and others (eds) Oxford English Dictionary (online ed) <>
Mr Ellis’s principal submission was that the Chair’s blanket determination amounted to an improper fetter on his discretionary power. He submitted that a public authority may not adopt a policy which precludes it from considering individual cases on their merits.[26] He says that concepts of fairness and training cannot be used to impose a policy where the discretion was not exercised individually in each case. Accordingly, he says, the determination was a nullity.
[26]R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546 at [50].
Mr Ellis submitted also that the Chair’s determination can be impugned because he failed to give reasons in making a decision which affected the parties’ substantive rights. He did not, however, explain the nature of that effect or identify a principled basis upon which Mr Zhang might have objected if given express notice of the determination. He accepted that all three members of the Tribunal who heard Mr Zhang’s appeal were properly appointed.
We disagree with Mr Ellis’s submission. The Chair’s reference to fairness is important. It is underpinned by an apparent assumption that the best interests of all parties are served if the decision making body comprises more than one member, on the assumption that extra decision makers provide a safeguard or a sounder decision making structure. The appellate structure of the courts of criminal and civil jurisdiction in this country is apparently predicated on that premise. The Chair’s view was that all appellants in Mr Zhang’s position should not be deprived of this benefit, which they had enjoyed as a right prior to the 2009 Act, where a power existed to protect it. That conclusion was plainly open to the Chair in the circumstances.
As a general proposition, a judicial body’s actions are invalid where legislation provides for a quorum which is not met. Similarly, a decision made by a body including a member who is not validly appointed is invalid. However, the same argument cannot be invoked where there is no challenge to the competence or qualification of a member of the body. The 2009 Act specifically provided for the Tribunal’s constitution of three members. In this situation we cannot see how Mr Zhang’s rights could possibly have been affected by the Chair’s decision.
The Chair made a reasoned determination, even if it was of a blanket or generic nature. In general the courts are reluctant to endorse or accept post facto justifications for decisions.[27] However, we can be satisfied that this case is unlike those where the apparent basis on which post facto reasons were supplied was to meet a claim of arbitrariness in the decision making process. In such circumstances as the reasons were provided after the fact the courts have tended to approach such evidence with caution, placing little weight on the reasons given. In contrast the Chair’s determination on Mr Zhang’s appeal is on its face clearly consistent with the stated reasons now given – as illustrated by a number of similar applications to Mr Zhang’s being treated in the same way: that is, being heard by three members rather than one member during the transitional period.
[27]Chiu v Minister of Immigration [1994] 2 NZLR 541 (CA) at 551.
In our judgment the Chair was not required to make a determination on a case specific basis where he had formed the view that each appellant subject to the transitional provisions was entitled to the benefit of the appeal rights provided by the 1987 Act. This situation was different from a public authority’s adoption of a policy precluding it from considering individual cases on their merits. That is a substantive fetter on a power, whereas this determination was of a procedural or administrative nature only.
In the result we are satisfied we have jurisdiction to hear the Minister’s appeal.
Result
The Minister’s appeal is allowed, the High Court judgment is set aside and the Tribunal’s decision is reinstated.
In the circumstances there will be no order as to costs.
Solicitors:
Crown Law Office, Wellington for Appellant
Marshall Bird & Curtis, Auckland for Respondent
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