Vilceanu v The Minister of Immmigration

[2008] NZCA 486

IN THE COURT OF APPEAL OF NEW ZEALAND

CA28/2008
[2008] NZCA 486

BETWEENCEZAR VILCEANU, CONSTANTA CAMELIA VILCEANU AND ADRIAN VILCEANU

Appellants

ANDTHE MINISTER OF IMMIGRATION

Respondent

Hearing:29 October 2008

Court:William Young  P, Chambers and Baragwanath JJ

Counsel:D J Ryken for Appellants

I C Carter and R A Kirkness for Respondent

Judgment:18 November 2008 at 3.30 pm

JUDGMENT OF THE COURT

A         The appeal is dismissed.

BThe appellants are to pay the respondent costs on a standard basis, band A, and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

Facts

[1]        Cezar and Constanta Vilceanu and their son Adrian emigrated from Romania to New Zealand in January 2004.  Adrian, who is now 12, suffers from a serious blood disorder, thalassaemia major.  Treatment for this disorder requires frequent blood transfusions and there is an associated need for iron chelation therapy (to address build up of iron resulting from blood transfusions).  Mr and Mrs Vilceanu took the view that the New Zealand health system would provide a better and safer standard of care for Adrian than could be obtained in Romania.  This is why they sought residency in New Zealand.  But this purpose and Adrian’s medical condition were concealed from the New Zealand immigration authorities.

[2]        Within the context of the New Zealand health system, and assuming good compliance on his part with the treatment regime, Adrian has a life expectancy of around 50 years.  Assuming that he lives until he is 50, the cost of his treatment will be very substantial, in the order of $5m by one estimate.  Effectively the same treatment is available from the Romanian health system.  Mr and Mrs Vilceanu nonetheless took the view that Adrian’s life expectancy would be far shorter in Romania than in New Zealand.  On the evidence adduced to date, that assessment would appear to be accurate.  For instance, the risk of receiving contaminated blood is higher in Romania than in New Zealand.  There is also the possibility that access to chelation therapy might be interrupted due to funding shortfalls in the Romanian health system.

[3]        Within days of arriving in New Zealand Mr and Mrs Vilceanu sought treatment for Adrian at Auckland Hospital.  It soon became apparent that they had not been candid with the New Zealand immigration authorities when seeking residence.  Accordingly, on 2 June 2005 the Minister of Immigration revoked the residence permits that had previously been granted to Mr and Mrs Vilceanu and Adrian.  They appealed to the Deportation Review Tribunal (“the Tribunal”), which heard the case on 22 and 23 February 2006.  The decision was not released until 26 January 2007.  In the meantime, on 1 January 2007, Romania acceded to the European Union.  This is of at least potential significance in relation to the way in which the Romanian health system can be expected to operate.  As well, on the basis of what Mr Carter for the Crown told us, this accession means that Romanians can now have access to the health systems of a number of European Union states which are at least comparable to the New Zealand system.

[4]        In its 26 January 2007 decision, the Tribunal quashed the revocation notices issued by the Minister.  The Minister challenged that decision in the High Court by way of both appeal and application for judicial review.  Both sets of proceedings came before Miller J on 28 November 2007.  In a judgment released on 11 December 2007, he allowed the appeal and remitted the case to the Tribunal for reconsideration: HC WN CIV 2007-485-377.  He declined to grant any relief on the review application.

[5]        By reason of s 117(6) of the Immigration Act 1987 there is no right of appeal to this Court against the judgment of Miller J allowing the appeal.  The appellants have therefore sought to appeal against the decision of the Judge on the judicial review proceedings.

[6]        We propose to address the appeal under the following headings:

(a)The case in the context of the Immigration Act;

(b)The decision of the Tribunal;

(c)The judgment of Miller J;

(d)Jurisdiction; and

(e)Disposition.

The case in the context of the Immigration Act

[7]        The Government’s residence policy (promulgated under s 13B of the Act) makes extensive reference to the health status of applicants.  One of the objectives of this policy is to ensure that those who immigrate to New Zealand have an acceptable standard of health.  To this end, the policy contains a number of provisions intended to limit the risk that those who gain residence will be a burden on the health system.  It is perfectly clear that Adrian’s state of health was not “acceptable” for the purposes of this policy.  The policy provides for medical waivers under which applicants whose health status is not acceptable may nonetheless be permitted to immigrate to New Zealand.  It has, however, never been suggested that Adrian would be a serious candidate for a medical waiver. 

[8]        The appellants obtained residence permits because Mr and Mrs Vilceanu gave untrue answers in relation to Adrian’s health on the relevant forms.  They gave these answers knowing that they were untrue and they did so because they realised that residence permits would not be granted if they answered truthfully.  Their actions provided a basis for revocation of the permits under ss 20 and 20A of the Immigration Act.  These sections relevantly provide:

20       Revocation of residence permit by Minister

(1)       The Minister may at any time revoke a residence permit on any of the following grounds, but no other:

…

(b)      That the permit… was procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

(c)       That the permit… was granted to a person who had been a holder of a visa or another permit procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

…

20A     Revocation of returning resident's visa by Minister

(1)       The Minister may at any time revoke a returning resident's visa on any of the following grounds, but no other:

…

(b)      That the visa was procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

(c)       That the visa was granted to a person who had been a holder of a permit or another visa procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

…

In revoking the permits the Minister invoked ss 20(1)(c) and 20A(1)(c).  This was on the basis that the then current permits and their precursors had been procured by the concealment of relevant information, namely Adrian’s health condition. 

[9]        The right of appeal exercised by the appellants to the Tribunal is provided for by s 22, which is relevantly in these terms:

22       Appeal on humanitarian grounds to Tribunal against revocation of residence permit

(1)       Any person whose residence permit is revoked under section 20 of this Act may appeal to the Tribunal against the revocation of the residence permit.

…

(4)       Subject to subsection (5) of this section, on any appeal under this section the Tribunal may confirm or quash the revocation of the residence permit, as it thinks fit.

(5)       The Tribunal shall not confirm the revocation of a residence permit under this section if it is satisfied that it would be unjust or unduly harsh for the appellant to lose the right to be in New Zealand indefinitely.

(6)       In determining any appeal under this section, the Tribunal shall have regard to the following matters:

(a)       The appellant's age:

(b)      The length of time 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 grounds on which the permit was revoked:

(f)       The interests of the appellant's family:

(g)       Such other matters as the Tribunal considers relevant.

…

(9)       Subject to section 117 of this Act, the decision of the Tribunal on any appeal under this section shall be final and conclusive.

[10]     When the Tribunal quashed the Minister’s decisions, a further right of appeal was triggered, this time to the High Court, under s 117 of the Act:

117     Right of appeal

(1)       Where the appellant in any proceedings before the Tribunal under this Act, or the Minister, is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, the appellant or the Minister may appeal to the High Court on that question of law.

…

(4)       On any such appeal, the High Court shall hear and determine the question or questions of law arising in the proceedings, and shall thereupon do any one or more of the following things:

(a)       Reverse, confirm, or amend the decision in respect of which the appeal has been brought:

(b)      Remit the matter to the Tribunal with the opinion of the High Court thereon:

(c)       Make such other order in relation to the matter as it thinks fit.

…

(6)       The decision of the High Court on any such appeal shall be final.

[11]     In his judgment on the appeal, Miller J invoked s 117(4)(b) of the Act and remitted the appeal to the Tribunal for “reconsideration”.  It was common ground between counsel that on such a reconsideration the Tribunal will have to address the situation as it then pertains.  In some respects this might be of assistance to the appellants (who have now been living in New Zealand much longer than was the case when the case was first heard by the Tribunal).  But conversely, the accession of Romania to the European Union (and the implications of this in relation to treatment options for Adrian within Europe) might strengthen the Crown’s case. 

The decision of the Tribunal

[12]     The critical part of the Tribunal’s reasoning was expressed in this way:

[55]     This appeal requires a balancing of the interests of the State in ensuring that immigration policy is upheld, viz, that fraudulent applications when detected and if appropriate, prosecuted against the very real humanitarian grounds in cases such as this.  This case in our view hinges on whether we accept that the health, welfare and life expectancy of Adrian will be enhanced by him remaining in New Zealand, and whether we accept that he would expect a higher and unacceptable risk of mortality should he return to Romania.  In that regard we find that his welfare is enhanced by being able to remain living in New Zealand because of the serious risk to his health should he return to Romania.  The evidence of Dr Cole in this regard was pivotal (that any interruption to his treatment would expose him to serious risk to his health) and in these particular circumstances, we find that it would be unduly harsh to require the Vilceanus to return to Romania.  As we have earlier found the interests of Adrian are intertwined with those of his parents and for those reasons, we regard each of their cases identically.

[56]     While we accept in some part, the submission by Counsel for the respondent that it is not “New Zealand’s” duty to allow the rest of the world to be safe or more comfortable (Rahman v Minister of Immigration, [HC WN AP56/99 26 September 2000],) or that the law does not say in an unqualified fashion that it is unjust or unduly harsh to require appellants to return to lesser conditions, in this case the decision is really one concerning returning a child back to an uncertain and potentially life threatening future.  In our view this is a considerably different scenario than simply returning a family back to their home country where substandard housing, uncertain employment or a polluted environment may be the norm.  It is the latter scenario which “Rahman” envisaged.

Summary

[57]     In the particular circumstances of this case we are satisfied that it would be unjust or unduly harsh for the appellants to lose the right to be in New Zealand indefinitely.  We wish to make it clear that this decision should not be regarded in any way as support for the contention that potential immigrants should profit from their provision of false or misleading information to Immigration authorities.  We acknowledge the public interest factor inherent in appeals of this nature, where concerns arise from the costs in providing medical care through the public healthcare system to recent immigrants.  We note that because of the changes to the type of blood testing, it is no longer possible for potential immigrants to arrive in New Zealand without detection of such a disorder.

[58]     As we noted in similar cases from comparable authorities, i.e. Removal Review Authority and Residence Review Board, of which we provided a synopsis earlier, decisions had been made to grant residence to such persons who have suffered from life threatening conditions and where a return to their home countries could potentially be inhumane.  We accept that prioritising and allocating funds for healthcare in New Zealand are indeed matters of serious public concern, however, for the reasons earlier given, the humanitarian factors in this particular case outweigh any of these other considerations.

(Emphasis added)

[13]     There is some ambiguity in the way in which the Tribunal expressed its conclusions. 

[14]     In the context of s 22(6), the Tribunal could not simply fasten onto the risks for Adrian of being sent back to Romania.  By reason of s 22(6)(e), it was required to take into account the reasons why the residence permits were revoked, which in turn invoked the health aspects of the Government residence policy, the fraud committed by Mr and Mrs Vilceanu and the importance of not rewarding such fraud.  This necessitated some sort of balancing exercise – that is an assessment of the comparative cogency of the factors favouring the Vilceanus as against those which favoured deportation, see Minister of Immigration v Al-Hosan [2008] NZCA 462 at [36] – [37]. Given the different character of the competing factors, the balancing exercise was necessarily going to be evaluative. Nonetheless, the cogency of general policy reasons supporting the revocation of residency permits obtained by fraud, might be thought to have called for some sort of evaluation of the extent to which a return to Romania would pose risks for Adrian.

[15]     There are two ways of reading the decision:

(a)First, as indicating that no balancing exercise had been carried out.  This is an available interpretation, as the Tribunal did not set out explicitly to balance the humanitarian considerations invoked by the appellants with the countervailing policy factors. 

(b)Secondly, as indicating that such a balancing exercise had been carried out, with the result that the risks to Adrian of returning to Romania were in the end the controlling consideration.  This too is an available interpretation.  It would after all be odd for the Tribunal to record the need to carry out a balancing exercise (see [55] of its decision) but not do so.  Arguably the word “unacceptable” in conjunction with the phrase “risk of mortality” along with the phrase “serious risk” (see [55]), recorded a conclusion by the Tribunal that the risk of mortality for Adrian if returned to Romania was sufficiently grave to outweigh the policy factors which favoured upholding the revocations.

The judgment of Miller J

[16]     Unfortunately for the appellants, Miller J adopted the first of the interpretations that we have set out:

[34]     The Tribunal recognised that the decision required that the interests of the State in upholding immigration policy be balanced against the very real humanitarian grounds in such cases.  But it immediately went on to hold that the case hinged on whether the Tribunal accepted that Adrian’s health would be enhanced by remaining in New Zealand and whether he would be at a higher and unacceptable risk of mortality in Romania.  The decision was really one about returning a child to an uncertain and potentially life-threatening future.  It concluded that it would be unjust or unduly harsh to do so, because there was a serious risk to Adrian’s health should he return to Romania.  Having reached that conclusion, it addressed the Vilceanus’ deception only by adding the assertion that the decision should not be regarded as authority for the proposition that potential immigrants can profit from fraud, and suggesting that because of new blood testing procedures potential immigrants can no longer arrive in New Zealand with such a disorder undetected.

[35]     In so reasoning, the Tribunal took it as given that it would be unjust or unduly harsh to revoke a residence permit if the health consequences were such that the appellant would face a “higher and unacceptable” risk of mortality.  In my opinion, the Tribunal thereby failed to carry out the balancing exercise that it had correctly required of itself, and so erred in law.  The balancing exercise required that the Tribunal acknowledge that a degree of risk to Adrian’s health had to be accepted if any material weight was to be given to his parents’ dishonesty in obtaining a residence permit, as plainly it must.  It also required that weight be attached to the policy that residency may be denied those who will place a burden on the public health system.  That policy recognises that New Zealand offers public health care that, for all its flaws, betters that of some other nations, and that it is not New Zealand’s duty to see to it that the rest of the world enjoys similar standards of care.  It follows that revocation cannot depend solely on whether the resulting risk of mortality is higher than it would be in New Zealand.  That risk, which turned on the risk that chelation therapy would be interrupted for significant periods, had to be quantified so far as possible, and weighed against other considerations.  Only after the balancing exercise was undertaken could the Tribunal determine whether an increase in the risk of mortality for Adrian was unduly harsh and so “unacceptable”.

(Emphasis added)

[17]     As to relief Miller J said:

[53]     The Minister has succeeded on the appeal.  Mr Carter invited me to reverse the Tribunal’s decision under s117(4), contending that I should not remit the matter to the Tribunal for reconsideration because revocation is the only possible outcome.  I decline that invitation.  For reasons outlined in paragraphs [48] and [49] above, it is not necessarily the case that the Tribunal, having properly directed itself, would confirm the Minister’s decision.  I remit the appeal to the Tribunal for reconsideration under s117(4)(b).

[18]     When he came to deal with the judicial review application, Miller J observed:

[54]     The judicial review application adds nothing of substance to the appeal.  Mr Carter frankly conceded that it has been brought because there is a right of appeal to the Court of Appeal from decisions of this Court under the Judicature Amendment Act while there is no such right of appeal under the Immigration Act.  Mr Carter pointed out that the Act contemplates both judicial review and appeals.  It is nonetheless surprising that the Minister charged with the Act’s administration should seek judicial review when an appeal to this Court is available under the Act, still more so that he should do so for the collateral purpose of securing an avenue of further appeal that is denied him under the Act.

[55]     The Minister has made out his case under the judicial review application, to the extent outlined above.  Relief is available under the Judicature Amendment Act notwithstanding any right of appeal (s4(1)), but the availability of an appeal may count against relief: Daemar v Gilliand [1981] 1 NZLR 61. In this case the application also adds nothing to the appeal under s117 and has been brought only to secure a right of further appeal that the legislation precludes: Meagher v Stevenson (1993) 30 NSWLR 736. I decline any relief, including declaratory relief, under the judicial review application.

Jurisdiction

[19]     The Crown challenged the jurisdiction of the Court to entertain the appeal.

[20]     It is apparent from what we have said that the decision of Miller J to allow the appeal turned on a very narrow point on the interpretation of the Tribunal’s decision.  If his interpretation is correct, he was indubitably right in concluding that the decision was erroneous in law.  If he was wrong, then the appeal should not have been allowed.

[21]     It is clear that there is no right of appeal to this Court against the judgment of Miller J allowing the appeal.  It follows – and this was accepted by Mr Ryken – that there must be a further hearing before the Tribunal, which will have to address the case in the context of the present circumstances, including Romania’s accession to the European Union.  In this context, whether the Judge correctly interpreted the first decision of the Tribunal involves a very dry debate, and one foreclosed by s 117(6).

[22]     In the High Court, the Crown’s grounds for seeking judicial review of the Tribunal’s decision mirrored those upon which it argued the appeal and thus added nothing of value to the resolution of the case.  The Crown brought the review proceedings for the not very satisfactory purpose of obtaining for itself a right of appeal to this Court should it be unsuccessful in the High Court.  With the appellants now seeking to use the review proceedings as a spring-board for the present appeal, the Crown thus faces the risk of being hoist by its own petard.

[23]     Miller J refused to grant relief in the review proceedings.  So, in the context of those proceedings, the present appellants were the successful parties.  In this respect the case seems to us to be very similar to the situation that this Court dealt with in Chief Executive of the Department of Labour v Taito [2006] NZAR 420 where an appeal to the High Court was heard at the same time as review proceedings. Because the Judge allowed the appeal, he made no order on the application for review. Although the Crown had, in substance, lost the case in the High Court (because the appeal was allowed), it had “won” in relation to the review proceedings. When the case came to this Court, the appeal against the High Court judgment was allowed. The Court then went on to consider the position in relation to the review proceedings because the Crown, with an abundance of caution, had appealed against the Judge’s “decision” in those proceedings. The Court said this:

[54]     … [T]he Crown was concerned that the application for review was left undetermined. We do not accept that. The judge concluded his judgment, having allowed the appeal (at para [81]):

No order is required on the application for review.

[55]     What he meant by that was that the application for review was dismissed; the appeal had given an appropriate remedy. His Honour’s conclusion in that regard was in accordance with case law: see, for example, Fraser v Robertson [1991] 3 NZLR 257 (CA) at p 260.

[56]     There was nothing for the Crown to appeal. The Crown may not agree with the reasoning which led the judge to make no order, but the successful party cannot appeal the reasoning which led to the success: Amalgamated Builders Ltd v Nile Holdings Ltd (2000) 14 PRNZ 652 (CA) and Caie v Attorney-General [2006] NZAR 379 (CA) at para [6].

[24]     Broadly to the same effect is the judgment of the Supreme Court in Arbuthnot v Chief Executive of the Department of Work and Income [2008] 1 NZLR 13, where the Court observed:

[25]     It is fundamental that an appeal must be against the result to which a decision-maker has come, namely the order or declaration made or other relief given, not directly against the conclusions reached by the decision-maker which led to that result, although of course any flaws in those conclusions may provide the means of impeaching the result. A litigant cannot therefore, save perhaps in very exceptional circumstances, bring an appeal when they have been entirely successful and do not wish to alter the result. The successful litigant cannot seek to have the appeal body overturn unfavourable factual or legal conclusions made on the journey to that result which have had no significant impact on where the decision-maker ultimately arrived. In short, there is no right of appeal against the reasons for a judgment, only against the judgment itself.

(Emphasis added)

[25]     We note the words which we have italicised contemplate that there may be “very exceptional circumstances” in which a different approach is required.  We can see no such exceptional circumstances here.  Indeed, the context of this case as a whole strongly points away from allowing the Vilceanus an appeal in the review proceedings.

[26]     The legislature has decided that the judgments of the High Court in relation to appeals from the Tribunal are final.  Section 117(6), which contains this restriction, was inserted in 1991 and must be taken to mean what it says.  The judgment of Miller J allowing the appeal is thus final.  It is generally an abuse of process to use collateral proceedings to impeach a judgment.  The reasons why this is so apply in this case.  In substance, the appellants are seeking to appeal a judgment of the High Court in respect of which there is no right of appeal.

[27]     We note that in Al Hosan (cited at [14] above), the challenge to the decision of the Tribunal was by way of judicial review only. There being no appeal to the High Court, s 117(6) of the Act did not apply. Accordingly the judgment of the High Court on the review was properly susceptible to appeal. Because the procedural history of this case is so different, the Al Hosan result is not controlling.

[28]     For those reasons we must dismiss the appeal.

Disposition

[29]     The appeal is dismissed.  The appellants are to pay the respondent costs on a standard basis, band A, and usual disbursements.

Solicitors:
Ryken and Associates, Auckland, for Appellants
Crown Law for Respondent