Tao v Minister of Immigration
[2016] NZHC 2807
•23 November 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-001662
CIV-2016-404-001664 [2016] NZHC 2807
UNDER THE Section 245 Immigration Act 2009 IN THE MATTER OF
an application for leave to appeal against a decision of the Immigration and Protection Tribunal
BETWEEN
GUOGUANG TAO Applicant
AND
THE MINISTER OF IMMIGRATION First Respondent
THE IMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent (CIV-2016-404-
001664 only)
Hearing: 27 October 2016 Appearances:
S Dalley and G Wong for Applicant
B Charmley for RespondentJudgment:
23 November 2016
JUDGMENT OF FOGARTY J
This judgment was delivered by Justice Fogarty
On 23 November 2016 at 4.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors:
Ryken and Associates, Auckland
Crown Law, Wellington
TAO v THE MINISTER OF IMMIGRATION [2016] NZHC 2807 [23 November 2016]
Introduction
[1] This is an application to this Court for an order granting Mr Tao leave to appeal under s 245 of the Immigration Act 2009 against a decision of the Immigration and Protection Tribunal (IPT), dated 23 June 2016.
[2] It is also an application for leave to bring an application for judicial review, under the Judicature Amendment Act 1972, of the same decision by the IPT.
[3] Counsel have agreed that the task of the Court was limited to determining the applications for leave or not. They are also agreed that if the Court determined there were grounds to grant leave in one or both matters, the proceedings would then continue on to hearing at a fixture date to be advised.
Factual background
[4] Mr Tao had been issued a residence visa along with his wife, on 1 June 2007. He obtained the New Zealand residence through his first wife, Ms Hongmei Jiang, a
64 year old citizen of China. The couple have two New Zealand resident children, aged 40 and 43 respectively, who in turn have married and had families of their own in New Zealand. Ms Jiang’s residence application was approved by Immigration New Zealand and she and her husband were issued residence visas on 1 June 2007. Mr Tao returned to New Zealand on 9 June 2007 and was granted a residence permit at the border. For the most part, he has lived in New Zealand but he has returned to China on nine separate occasions between June 2008 and July 2015.
[5] On 12 November 2014, an application for residence under the family (dependent child) category was made by LM, a 15 year old citizen of China. Her application was made on the basis that she was the appellant’s dependent child. Her mother, Wanluan Xu, is a 48 year old citizen of China who lives in Shanghai. In support of LM’s application, a DNA paternity test (made on 1 February 2007) confirmed that the appellant was LM’s biological father.
[6] Mr Tao did not disclose that he was the biological father of LM when his wife included him in her application as her partner, applying for residence.
[7] At the time Mr Tao failed to supply the information that he was the biological parent of LM, the Immigration New Zealand form required him to give the following “evidence of relationship to your children”:
The NZIS needs to see evidence of the relationship between you and all your children, including your sponsor. Evidence of parent(s)’ relationship to children is original or certified copies of:
(there then follow three boxes to be ticked)
Birth certificates establishing the of the children to their parent(s); or
Household registration documents, if these establish the relationship of the children to their parent(s); or
Evidence of adoption which establishes the relationship of the children to their parents.
The issue before the IPT
[8] The issue before the IPT was whether or not Mr Tao should be deported1 on the ground that he concealed relevant information from Immigration New Zealand, namely that he had a biological child in China. Section 202(ca) provides:
202 Grounds for determining appeal on facts
The Tribunal must allow an appeal against liability for deportation on the facts where,—
(ca) in the case of an appellant liable for deportation under section 158(1)(b)(ii), the Tribunal is satisfied, on the balance of probabilities, that none of the information provided in relation to the person’s, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, and no relevant information was concealed.
[9] Section 158(1)(b)(ii) provides:
158Deportation liability of residence class visa holder due to fraud, forgery, etc
…
(ii) any of the information provided in relation to the person’s, or any other person’s, application, or purported application,
for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, or any relevant information was concealed.
The IPT’s decision
[10] The IPT observed that had that information been disclosed the appellant may not have been granted residence. It further observed that the primary issue on appeal before it was whether, on the balance of probabilities, Mr Tao had established that no relevant information was concealed from Immigration New Zealand.
[11] It was submitted before the IPT that Mr Tao was not obliged to disclose LM because she was his donor offspring, meaning that her mother had taken sperm donated by Mr Tao, and indeed had taken two sperm donations before she became pregnant.
[12] The IPT held that the appellant’s residence application form required him to disclose all of his biological children and that the concealed information was relevant because, with two children living lawfully and permanently outside of New Zealand (another daughter was not granted residence until 2008), the appellant did not satisfy the centre of gravity requirement of the family (parent) category. The IPT also held that had Immigration New Zealand been informed of the true situation, the appellant would not have been granted residence. The IPT went on to also reject a humanitarian appeal. The Tribunal found there were no exceptional circumstances of a humanitarian nature in terms of the statutory test. Accordingly, the appeal was declined.
[13] Significantly, the IPT found:
The Tribunal finds that, even if [LM] was the appellant’s donor offspring, (which has not been established based on the limited information before the Tribunal), this does not change the fact that she is his biological daughter.
Argument – leave to appeal
[14] It is Mr Tao’s case that LM was born by the artificial insemination of her mother by semen obtained from himself when he was not her partner2 and that he was not obliged to disclose his biological relationship to LM, naming her as his child.
[15] It needs to be kept in mind that he was asked to provide these answers about February 2006. At that time, the Status of Children Act 1969 was in force. Part 2 of that Act dealt with the state of children conceived as a result of assisted human reproduction procedures.
[16] Section 22 of the Act provided:
22 Woman acting alone: non-partner semen donor not parent unless later becomes mother's partner
(1) This section applies to the following situation:
(a) a woman acting alone becomes pregnant as a result of an
AHR procedure:
(b) the semen used for the procedure was produced by a man
(man A) who is not her partner.
(2) In that situation, man A is not, for any purpose, a parent of any child of the pregnancy unless man A becomes, after the time of conception, the woman's partner (in which case the rights and liabilities of man A, and of any child of the pregnancy, are determined in accordance with section 24).
[17] I was advised from the bar that NZIS requirements, set out in [7] above, were drafted prior to the 1969 enactment of the Status of Children Act.
[18] Mr Tao argues that he was not, post the Status of Children Act required, or allowed by law, to disclose LM’s existence as one of his “children” on his residence application form. For, under New Zealand law, he was not the parent of LM.
[19] The applicant submits that the Tribunal erred in law relying upon the fact that she is his biological daughter.3
[20] The Crown submitted that s 226 of the Immigration Act 2009 applies. It provides:
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.
(2) Where an appeal or matter is lodged,—
(a) subject to agreement between the Tribunal and the chief executive, the Tribunal must give the chief executive a copy of the notice of appeal or matter and any information, evidence, or submissions lodged by the appellant or affected person; and
(b) the chief executive must, in the time allowed by the Tribunal for the purpose, lodge with the Tribunal any file relevant to the appeal or matter that is held by the Department.
(3) The Minister, the chief executive, or a refugee and protection officer may also, in the time allowed by the Tribunal for the purpose, lodge with the Tribunal any other information, evidence, or submissions in relation to the appeal or matter as he or she thinks fit.
[21] It was the submission of the Crown that this section places responsibility on Mr Tao to establish his case that he was LM’s father by way of sperm donation, rather than by way of natural conception.
Discussion – leave to appeal
[22] In my view this submission begs the question, of law, as to whether or not at the time Mr Tao answered the questionnaire whether he would be regarded in law as the parent of LM, if he was the sperm donor. Given the state of the law at the time Mr Tao provided the information, there is a serious argument of law as to whether he had to name LM as his child, let alone a question of fact as to whether he
“concealed” her existence. There is a significant argument that “children” in that document, should be construed consistently with s 22(2) of the Status of Children Act 1969.
[23] An alternative formulation of the question of law is: whether or not it was open to Immigration New Zealand to require answers/proof as to biological parenthood, given the prohibition in New Zealand law at that time of such a person claiming to be a parent?
[24] Leave is granted to appeal on these two formulations, or any other formulation of the same issue, as may be approved by this Court.
[25] In my view, there is no need to grant leave for judicial review, as the appeal will cover the same points as to error of law as would be considered in a judicial
review. The issue is one of law, not the exercise of a discretion.
Fogarty J
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