Wang v Chief Executive of the Department of Labour HC Wellington CIV-2007-485-399

[2007] NZHC 2017

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2007-485-399

IN THE MATTER OF     the Immigration Act 1987

AND

IN THE MATTER OF     an appeal against a decision of the Removal Review Authority pursuant to s115A of the Immigration Act 1987

BETWEEN  DAVID TIENAN WANG AND SANDY PEIYAN WANG ALSO KNOWN AS SANDY PEIYAN HAN

Appellants

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent

Hearing:         16 August 2007

Appearances: J S Petris for Appellants

H L Dempster and M L Campbell for Respondent

Judgment:      21 August 2007

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 21st day of August 2007.

RESERVED JUDGMENT OF GENDALL J

[1]      Mr Wang and his wife, ethnic Chinese, entered New Zealand on 2 January

2004 and want to remain.   They received visitors’ permits, extended from time to time, and Mr Wang later obtained a work permit.   But all permits ceased as from

4 May 2006 and they have been required to leave New Zealand by the Department of

Labour.

D T WANG AND S P WANG ALSO KNOWN AS S P HAN V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV-2007-485-399  21 August 2007

[2]      This  decision  was  confirmed  by  the  Removal  Review  Authority  (“the

Authority”), and the Wangs have appealed against that decision.

[3]      In the documents before the Authority the wife is described as “Sandy Peiyan Han” but is called “Wang” in the High Court proceedings and I will refer to her by that name.

[4]      An appeal pursuant to s115A of the Immigration Act 1987 must be on a question of law.  There is no other ground upon which an appeal can be pursued.  A removal order may be cancelled, or the period during which it would otherwise remain in force reduced, by the Authority and, under s47(3) of the Act, the only grounds for an appeal to the Authority are:

“(3)An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it  unjust  or  unduly  harsh  for  the  person  to  be  removed  from New Zealand,  and  that  it  would  not  in  all  the  circumstances  be contrary  to  the  public  interest  to  allow  the  person  to  remain  in New Zealand.”

Issues

[5]      The issues with which the appeal is concerned, as advanced on behalf of the appellants, are:

•   Did  the  Authority  err  in  law  by  failing  to  properly  apply  decided authorities and finding that the appellants did not face a combination of the prospect of serious physical, emotional and economic harm, so as to result in extreme hardship if removed?

•   Were the Authority’s findings regarding possible future actions of the appellants, made without any evidence to support such findings?

•   Did the Authority give proper or adequate reasons for the findings and decision.

Background

[6]      The appellants were born in the People’s Republic of China and were citizens of that country until August 2002.   At that time they were in their early 40’s.   In April 2000 Mr Wang applied to the New Zealand Immigration Service in Beijing for a visitor’s visa as they wished to come to New Zealand, but the application was declined.

[7]      It seems that towards the end of 2001 Mr and Mrs Wang heard about the possibility of immigrating to the pacific nation of Nauru.  They were introduced to an immigration agent to whom Mr Wang paid $50,000US, it is said to arrange for the immigration application.  The agent said that some of those moneys would go to the government of  Nauru  in  return  for  citizenship  being  granted.    It  is  unclear whether that is correct or not.  Mr and Mrs Wang knew little about Nauru other than the somewhat glowing descriptions given by the agent.

[8]      So, in August 2002 Mr and Mrs Wang and their teenage daughter left China with Chinese passports and travelled to Nauru.   They were accompanied by the agent.   They received permits to stay in Nauru for three months.   But they were disappointed to learn that living circumstances in Nauru were not as they had been led to believe.   Water and fresh produce was in short supply, a difficult climate existed, and economic and employment circumstances were poor.

[9]      Nevertheless, after about two weeks they, with the assistance of the agent, proceeded with their application to become citizens of the State of Nauru.  Why they did  so,  given  their  earlier  disappointment,  is  not  easily  understood.    But,  on

30 August 2002 they were given Nauru citizenship and Nauru passports.  Within one week they returned to China on their new passports as they wished their daughter to resume school in China, given that the educational opportunities far exceeded those in Nauru.   Their Chinese passports and citizenship was cancelled by the Chinese Government.

[10]     The Wangs have not returned to Nauru since then.

[11]     On 24 February 2002 they left China and flew to Ireland to see a cousin of Mrs Wang.   Their Nauru passports and citizenship had the advantage of enabling them to enter, it seems, very many countries without a visa.

[12]     On  27  February  they  travelled  to  England  and  lived  with  a  relative  of Mrs Wang until 30 December 2003.  They were not employed over that period it is not recorded how they supported themselves during that time.

[13]     They  left  England  on  30  December  2003  travelling  via  South  Korea  to New Zealand, arriving in Auckland on 2 January 2004.   In mid-2004 they became concerned at the thought of returning to Nauru, not only from past experience but because they had seen publicity about deteriorating conditions in that country.  When Mr Wang’s   work   permit   application   was   unsuccessful   towards   the   end   of September 2004,  the  couple  purchased  air  tickets  to  return  to  Nauru  via  Fiji. Mrs Wang at least, had no particular objection to returning at that time.

[14]     But they did not leave.  When they learnt of worsening economic and other circumstances in Nauru in October 2004, they decided that they would not return.

[15]     They applied for refugee status on 5 January 2005.  This was presented on the basis that they feared returning to Nauru because of shortage of water and produce, health problems arising from canned food, little employment or business opportunities, economic hardship, and an absence of any humanitarian assistance from the international community.  They said that they:

“could die without anyone knowing because they cannot speak the language in Nauru and do not have any friends or family there.”

[16]     The application for refugee status was declined on 30 August 2005.   The Wangs  immediately  appealed  against  that  decision  but  eventually  withdrew  the appeal on 20 February 2006.  Their temporary permits were then revoked effective from 4 May 2006.

[17]     As  a  consequence  the  appeal  was  made  to  the  Authority  against  the requirement to leave New Zealand.  Nearly two years have elapsed since the visitors’

permits expired and through the refugee status application and the various appeal procedures, the Wangs have been able to remain in New Zealand.

The Authority’s decision

[18]   This encompasses 12 pages and commences by recording the essential background facts and chronology in significant detail.  The Authority then deals with the  appellants’  case  as  was  submitted  by their  representative  or  solicitor.    The Authority summarises the grounds for appeal, namely that the Wangs would face extreme hardship if returned to Nauru it being effectively bankrupt, and would be worse off than local population who were, in any event, living at a subsistence level. Secondly, that the Wangs had lost their Chinese citizenship so could not return to China on a permanent basis and could not obtain residence in their hometown by reason of the Chinese system of household registration.   Thirdly, it would not be contrary to the public interest for the Wangs to remain in New Zealand as Mr Wang had skills needed here and both had no criminal convictions nor were a threat to security of New Zealand.

[19]     The Authority then refers to documents submitted by Mr Petris to support the appeal and records the statutory grounds of appeal.   The stringent, or stern, test imposed by the statutory wording  “exceptional  circumstances  of  a  humanitarian nature…unjust or unduly harsh” as discussed in Ragendra Patel v Removal Review Authority & Anor [2000] NZAR 200, 204, is mentioned.

[20]     The Authority then assessed the submissions and material provided to it. Reference is made to the Wangs “effectively purchasing citizenship of Nauru and lived there for a week or two before taking up their citizenship”.   The Authority refers to reports and information available arising out of the Refugee Status Branch decision and on the standard of living of people in Nauru and recent assistance granted to that country by the Australian, United States and Chinese Governments. The   Authority   observed   the   Wangs   did   not   fully   disclose   their   personal circumstances as to how they were able to live in the United Kingdom for many months without employment, and with proceeding with the citizenship application in Nauru, notwithstanding having experienced the downside of conditions there for

about two weeks.   The Authority records that although the Wangs were unable to speak the language, having no friends or family to support them in Nauru, apparently

8% of the 12,000 population in Nauru are in fact Chinese.

[21]     The Authority at [38] – [39] then went on to say:

[38]     This Authority is often faced with appeals where it is clear that appellants will, if unsuccessful, return to living conditions well below the standard that they have enjoyed in New Zealand.   This Authority has to determine whether that circumstance, with all the other circumstances particular to an appellant, constitute exceptional circumstances of a humanitarian  nature  that  would  make  it  unjust  or  unduly  harsh  to  be removed from New Zealand.

[39]     The High Court has considered this issue (see:   Ronberg v Chief Executive,  Department  of  Labour  [1995] NZAR 509, at pp526-527, a decision of McGechan J). In so far as they consider they may have a better future in New Zealand, the Authority notes that the desire to improve one’s economic opportunities does not amount to exceptional circumstances of a humanitarian nature. The fact that the appellants’ circumstances would be better if they remained in New Zealand is not an exceptional circumstance of a humanitarian nature.”

[22]     It is this passage which the appellants’ counsel says comprised an error of law on the part of the Authority because it failed to properly apply the observations in Ronberg. I return to deal with this later at [27] – [31].

[23]     On the question of possible restoration of Chinese citizenship, the Authority said that Chinese law provided that foreign nationals who once held Chinese nationality may nevertheless apply for restoration of Chinese nationality if they have legitimate reasons.  The New Zealand Refugee Status Branch’s inquiries indicated that it was possible to have such citizenship restored if a person gave up the citizenship of a second country.   The Wangs have their daughter in China, who presumably had retained Chinese citizenship and this “could assist in an application for restoration of citizenship and surrender of their Nauru citizenship”.

[24]     The Authority referred to the appellants having other close family in China and whilst they might have difficulty in obtaining registration in a different city, or economically more developed area, a return to their home area would not be out of the question.  The Authority then said:

“While  the  appellants  disliked  their  stay  in  Nauru  there  is  no  medical evidence that they could not return and live there with the population of

12,000 people.  They can make an application to have Chinese citizenship

restored so there is the prospect of their being able to persuade a decision- maker that they should be restored to their family and resume citizenship before foregoing their citizenship of Nauru.”

[25]     The Authority said it had to apply a composite test with the whole picture, including all the circumstances and the effects that have led to the appeal, had to be viewed.   The statutory wording “exceptional circumstances of a humanitarian nature…unjust or unduly harsh” were strong words imposing “a stern test” and the Authority said that test had not been met.   It concluded that having considered all aspects of the circumstances collectively, as the Wangs had disclosed, there were no exceptional circumstances of a humanitarian nature that it would make it unjust or unduly harsh for the Wangs to be removed from New Zealand.  As a consequence, the first statutory requirement under s47(3) having not been met, the Authority did not need to proceed to consider the public interest issue.

Did the Authority err in law in any of the ways contended?

[26]     Mr Petris’ arguments were:

•   The Authority failed to properly apply the observations of McGechan J in Ronberg v Chief Executive, Department of Labour (supra).   The comments had to be read in the context of the whole proceedings and that the case of Mr and Mrs Wang was one of “extreme hardship” and the Authority erred in interpreting Ronberg as saying that economic considerations never amounted to exceptional circumstances.

•   The Authority erred in proceeding on the assumption that the appellants could apply for reinstatement of Chinese citizenship so as to return on a permanent basis.

•   The Authority gave inadequate reasons, and clear unambiguous language for its decision, failing to adequately set out the reasons why it rejected the case put forward by Mr and Mrs Wang and failed to properly deal

with their fears and concerns that they would suffer extreme hardship if returned to Nauru and might die.

[27]     Turning to the first ground.  The observations by McGechan J in Ronberg are well known, and are no more than common sense remarks which may apply in a wide variety of cases. His Honour was dealing with the statutory words “exceptional circumstances” in the context of “humanitarian nature”, focusing on the humane and the requirement that there be serious physical, emotional or economic harm in circumstances that were unusual/rare/out of the ordinary/abnormal. McGechan J then said at 526-527:

“Mere economic benefit – the fact a person can live more comfortably in New Zealand than elsewhere – perhaps with employment instead of unemployment – is not the type of humanitarian consideration in contemplation in the statute.  It would usually have difficulty qualifying in itself as an ‘exceptional circumstance’ rendering removal ‘unjust or unduly harsh’.  It was not intended that New Zealand house the world.  In reality, economic considerations which can come into play will co-exist with serious physical and emotional harm.   Poverty in itself will not suffice.   Poverty, starvation, and disease might do so.   There are questions of degree;   but clearly  mere  economic  considerations  –  per  se  –  are  not  an  intended element.”

[28]     In this case the Authority correctly framed the appropriate test in [38] of its decision.  It was entitled to refer to the remarks of McGechan J in Ronberg and was correct in saying that a desire to improve one’s economic opportunities does not amount to exceptional circumstances of a humanitarian nature.   Apart from that desire, frequently held by those wishing to remain in New Zealand, there has to be something more if the stern statutory test is to be met.  There was no possible error of law in the way in which the Authority referred to the dicta of McGechan J and applied it to that part of the case put forward by Mr and Mrs Wang, namely that they were seeking better economic opportunities in New Zealand than could exist in Nauru.

[29]     However, the Authority did not say that that was the only platform upon which the Wangs had presented their case and did not focus solely on that desire, as is apparent from the reading of the decision in its entirety.  There is reference to the views of Mr and Mrs Wang as to poor standard of living, social isolation, possibility of them dying without anyone knowing.  The Authority included prospective serious

harm and the concern of the Wangs that they would suffer physical harm if they were required to return to Nauru.

[30]     Yet, in assessing the case of Mr and Mrs Wang the Authority observed, as it was entitled to do, that they were aware  of the  reality of life  in  Nauru  before acquiring citizenship;   evidence before the Refugee Status Board had suggested increased assistance (since the Wangs had left Nauru) was ameliorating some problems;   the Wangs had not fully disclosed their personal circumstances;   and there was no medical evidence that they could not return to live there given the population of 12,000 people of which the evidence was that 8% were Chinese – i.e. over 900 persons.

[31]     It has not been shown that the Authority erred in law in the manner in which it referred to the well understood remarks and dicta of McGechan J.

[32]     There is no substance in the claim that the Authority erred when referring to the possibility that Mr and Mrs Wang might have their Chinese citizenship restored. The  Authority  correctly  recorded  that  it  was  possible  for  an  application  for restoration to Chinese nationality be made.  It did not say that would be successful but it was entitled to express the view that it could be successful given that Mr and Mrs Wang had a child in China who presumably had retained Chinese citizenship. Although the Authority observed that the Refugee Status Board had proceeded on the assumption that it is not possible for the Wangs to return to China permanently, there had been no finding that that was in fact the position.   The possibility of repatriation was something that was relevant to the Authority’s consideration of all the circumstances of Mr and Mrs Wang and it did not err in the manner in which it dealt with that.

[33]     The Authority gave clear and understandable reasons for its decision.  Whilst Mr Petris says that the  reasons did not deal with Mr and Mrs Wang’s express concern that “they would die there”, it is implicit in the Authority’s statement that it did so:

“While  the  appellants  disliked  their  stay  in  Nauru  there  is  no  medical evidence that they could not return and live there with the population of

12,000.”

[34]     The Authority referred to what Mr and Mrs Wang essentially were arguing, namely that because of the social isolation and language limitations they “could die without anybody noticing”.  Counsel said that the Authority in simply referring to Mr and Mrs Wang’s “dislike of Nauru”, did not provide a proper foundation for rejecting all the arguments advanced.  But what the Wangs said, as they had to, was that extreme hardship would result if they were required to return to Nauru, and reading and analysing the Authority’s decision as a whole, it is abundantly clear that its reasoning could not be called into question, nor the manner and extent of the reasons given.

[35]     It is of course the case that a Tribunal is required to give reasons which are, in the context of the cases before it, adequate.  This is so as to ensure that parties know why they succeeded or failed and, if decisions are  challenged on  appeal, reviewing Courts likewise know the reasons for a decision.   What is adequate or sufficient reasons will vary according to the circumstances.  In this case the reasons were more than sufficient and made it abundantly clear not only to the parties but also to this Court of the basis upon which the appeal was dismissed.

[36]     When dealing with the merits the Authority had the additional advantage of having access to the Refugee Status Branch material.  It was extensive and provided a wealth of background and fact which is not always the case in appeals under this jurisdiction.  It was fully entitled to conclude, from all the material contained in the files, and that which was submitted by on behalf of Mr and Mrs Wang, it had not been shown that their removal back to Nauru where they had lived as citizens for only one week in 2002 would result in them facing extreme hardship, emotional, physical, economic or otherwise, so that there existed exceptional circumstances of a humanitarian nature so as to render it unjust or unduly harsh for them to be removed from New Zealand.

[37]     Mr Petris’ valiant arguments endeavoured to avoid the criticisms often made by the High Court that cases such as these are appeals on the questions of fact, but

dressed up as errors of law.  It has repeatedly been said that the jurisdiction of this Court on appeal is confined and without error of law it cannot interfere.  As Wild J said in Mohamud & Ors v Minister of Immigration (High Court, Wellington, AP21/98, 5 October 1998):

“Quintessentially, error of law involves the application of an incorrect legal test or a wrong answer to a legal question upon unchallenged facts.    Here, an obvious example would be the Tribunal misinterpreting  or  mis-applying  relevant  provisions  of  the Immigration  Act.    Under  the  label  ‘question  of  law’  a  limited incursion is now permitted into the factual area where either the Tribunal has:

1.Come to a conclusion without any evidence or upon evidence which could not reasonably support its conclusion, or

2.Failed to draw from unchallenged primary facts an inference favourable to the appellant, when such inference is the only one reasonably open.

What  the  Court  may not  do  under  guise  of a  question  of  law  is concern itself with whether the Tribunal was right or wrong in its conclusion ie with the merits of the case.  Further, the weight to be given to the assessment of relevant considerations is for the Tribunal alone and not for consideration by the Court as a point of law.”

[38]     Similar sentiments have been expressed by several Judges in many appeals. The same remarks apply to this case.   The appellants chose to renounce their citizenship of their native country for economic reasons.  It is sad for them that they chose to spend the money they did and found, to their disappointment, that what had been expected did not measure up.  But they chose to give up their citizenship within a few weeks of arriving in Nauru, and remained thereafter for a very short time. They are not “stateless” and could not possibly have qualified as refugees.  The onus of establishing the statutory test was upon Mr and Mrs Wang and it is clear the Authority applied a composite test, viewing the whole picture and all the circumstances, as it mentions.  The challenge to the Authority’s decision was really based on non-reviewable questions of fact and conclusions that it was entitled to draw from all the material before it and this appeal, like so many of these, merged into what was in substance an appeal on the merits.

[39]     The appeal is without merit despite the careful (as usual) argument presented in support of it by Mr Petris.

[40]     The appeal is dismissed.   The time has come in matters such as these for unsuccessful appellants – especially where there is no tenable argument able to be advanced to support the appeal – for orders for costs to be made.  As a consequence the appellants are ordered to pay costs of $800 to the respondent.

…………………………………… J W Gendall J

Solicitors:

J S Petris, Wellington for Appellants

Crown Law Office, Wellington for Respondent