Wu v Minister of Immigration
[2016] NZHC 1309
•16 June 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-003160 [2016] NZHC 1309
BETWEEN DONGME WU
First Applicant
WEN ZHONG Second Applicant
AND
THE MINISTER OF IMMIGRATION First Respondent
THE NEW ZEALAND IMMIGRATION AND PROTECTION TRIBUNAL Second Respondent
AND
CHIEF EXECUTIVE MINSTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Third Respondent
Hearing: 12 May 2016 Appearances:
C Curtis and T G Zohs for Applicants
B C L Charmley for RespondentsJudgment:
16 June 2016
JUDGMENT OF PALMER J
This judgment is delivered by me on 16 June 2016 at 3 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Marshall Bird & Curtis, Auckland (C Curtis) Crown Law Office, Wellington
WU v THE MINISTER OF IMMIGRATION & ORS [2016] NZHC 1309 [16 June 2016]
Summary
[1] The Immigration and Protection Tribunal declined humanitarian appeals against deportation to China by Ms Dongmei Wu and her husband Mr Wen Zhong. They have two children, Xinyuan, a six year old Chinese citizen, and Olivia, a one- year old New Zealand citizen. Ms Wu and Mr Zhong apply for leave to appeal and to bring judicial review proceedings in relation to two issues.
[2] I decline one set of applications for leave but grant the other. I decline the applications relating to whether the Tribunal erred, in having regard to the effects of deportation, in determining there were no exceptional circumstances of a humanitarian nature. I consider the law allows the Tribunal to do that. I grant the applications for leave to appeal and for judicial review relating to the Tribunal’s consideration of the legal status of Olivia under Chinese law. I am satisfied these issues are arguable. Because of their general and public importance, and because it is in the interests of justice, I consider they should be fully argued in the High Court.
[3] The judgment outlines what happened, summarises the legal tests for leave and deals with the two issues.
What happened
From China to New Zealand
[4] In 2005 Ms Dongmei Wu’s older sister came to New Zealand from China with her husband. Ms Wu’s sister remains here, as a New Zealand citizen, with primary care of three children. Ms Wu also has a brother in China.
[5] In September 2008 Ms Wu’s sister sponsored her parents, and Ms Wu as a dependent child (an unmarried adult child under a certain age and without children), to come to New Zealand under the Family (Parent) category of residence.
[6] Ms Wu began a relationship with Mr Wen Zhong in late 2008. They had a daughter, Xinyuan Zhong, in October 2009. Her parents did not know of the relationship or the daughter.
[7] Ms Wu did not advise Immigration New Zealand that she had a partner and a child, which would have made her ineligible for a resident visa. Had Ms Wu been ineligible for a visa, her parents would not have qualified either because they would have had two children in China and only one in New Zealand. As such the “centre of gravity” of their family would have been in China.
[8] After the application was approved in July 2010 Ms Wu and her parents moved to New Zealand in August 2010.
[9] Mr Zhong acted as caregiver of Xinyuan in China. In September 2012 they too entered New Zealand, initially on visitors’ visas. Mr Zhong obtained a work visa. Xinyuan subsequently obtained a student visa. In October 2012 Mr Zhong and Ms Wu married in New Zealand. In March 2015 they had a second child, Olivia, who was born in New Zealand and, as the child of a New Zealand resident, is a New Zealand citizen.
Deportation
[10] In 2013 the Minister of Immigration determined that the resident visas granted to Ms Wu and her parents were procured through the concealment of information. In April 2014 they were issued with deportation liability notices. In December 2014 Mr Zhong’s further application for a work visa was declined, making him also liable for deportation. All four of them appealed against deportation on humanitarian grounds.
[11] On 25 November 2015 the Immigration and Protection Tribunal allowed the appeals of the parents. It was satisfied there were exceptional circumstances of a humanitarian nature relating to them. It considered those circumstances would make it unjust or duly harsh for them to be deported, considering their lack of culpability
for the concealment of information.1 It considered it would not be contrary to the
public interest for them to remain.
1 Wu v Minister of Immigration [2015] NZIPT 600135 at [100]-[102] [IPT Decision].
[12] But, in the same decision, the Tribunal found that no exceptional humanitarian circumstances applied to Ms Wu, Mr Zhong and their children. The Tribunal considered Ms Wu and Mr Zhong “have not established that they will not, given time, be able to re-establish themselves” in China.2 It considered that their children’s interests “will be substantially served by being in the care of both of their parents, whether in China or in New Zealand”.3
Applications
[13] Ms Wu and Mr Zhong seek leave to appeal and to bring judicial review proceedings challenging the Tribunal’s decision. In particular, they argue:
(a) The Tribunal did not separately apply each of the three elements of the test for a humanitarian appeal in s 207(1).
(b)The Tribunal did not take into account relevant information about the status of Olivia under Chinese law, and did not discharge its duty of seeking further such information necessary to address her interests as a New Zealand citizen child.
The thresholds for leave
[14] The purpose of the Immigration Act 2009 (the Act), according to s 3(1), is “to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”.
[15] Section 245(1) of the Act provides that a decision of the Tribunal can only be appealed to the High Court with leave and on a question of law.4 The Court is required by s 245(3) to 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”.
2 At [88].
3 At [91].
4 In fact, the drafting of s 245(1) is less clear than this. It appears to require only that the appellants, themselves, be “dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law”. If that were subjective it may not be such a difficult test. But, presumably, the dissatisfaction must be reasonably capable of being held.
[16] Section 249, unusually, restricts judicial review of decisions by the Tribunal. Section 249(3) requires that review proceedings may only be brought if the High Court grants leave and s 249(6) requires the Court to have regard to:
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
[17] Neither provision purports to exclude the High Court from considering other factors in deciding whether to grant leave to appeal or review.
[18] In RM v Immigration Protection Tribunal I recently treated, at some length, the law governing applications for leave to appeal and for leave to bring judicial review proceedings.5 In summary, I held that the test for granting leave to appeal includes a judicial discretion to grant leave in the interests of justice.6 While I noted the two tests are worded, and to be interpreted, similarly, I also outlined the constitutional and Bill of Rights implications of s 249 regarding judicial review.7
Where a court considers a ground of review is potentially arguable, I considered that ss 6 and 27(2) of the Bill of Rights militate in favour of leave to bring proceedings being granted, which might make a difference in marginal cases.8
[19] The RM judgment is under appeal. In addition, two days after it was issued, the Court of Appeal issued a judgment in Machida v Chief Executive of Immigration New Zealand which agreed with other High Court decisions that s 245(b) could only be met “in an exceptional case involving individual injustice to such an extent that
the Court simply could not countenance the Tribunal’s decision standing”.9
[20] Presumably the appeal of RM or other forthcoming case law will reveal the fate of my (modestly) more expansive interpretation of the test of appeal in s 245. In
5 RM v Immigration and Protection Tribunal [2016] NZHC 735.
6 At [2].
7 At [42]-[51].
8 At [50].
9 Machida v Chief Executive of Immigration [2016] NZCA 162 at [8], effectively adopting Kós J’s test in Taafi v Minister of Immigration [2011] NZHC 1768, [2013] NZAR 1037 at [19]. The Court in Machida did not refer to RM.
the meantime, I apply the law as the Court of Appeal has determined it to be in Machida although, in this case, the result would be the same whichever approach is applied.
[21] I continue to adhere to the view I expressed in RM of s 249, regarding the additional considerations relevant to granting leave for judicial review.
Issue 1: Did the Tribunal fail to apply each element of the test separately?
The applicants’ submissions
[22] Ms Curtis, for Ms Wu and Mr Zhong, submits that the Tribunal failed properly to apply the test for a humanitarian appeal. She submits that the Supreme Court in Ye “mandated that the first stage of the s 207(1)(a) limb is drafted as a
‘sequential’ test involving three ingredients”.10 She submits that the Tribunal’s
decision-making conflated, and did not deal sequentially with, the three ingredients: exceptional circumstances; of a humanitarian nature; and removal being unjust or unduly harsh. In particular, she objects that the Tribunal regularly inserted the effects of deportation into its assessment of whether there are exceptional circumstances of a humanitarian nature.
The Tribunal’s reasoning
[23] The Tribunal’s “Assessment” part of its determination first considered whether there were exceptional circumstances of a humanitarian nature. It considered there were in relation to the parents but not in relation to Ms Wu, Mr Zhong or their children. It then considered whether it would be unjust or unduly harsh to deport the parents, concluding that it would. Finally, it considered whether it was satisfied it was in the public interest to allow the parents to remain in New Zealand, concluding it was.
[24] In considering whether there were exceptional circumstances of a humanitarian nature that applied to Ms Wu and Mr Zhong the Tribunal did, at several
10 Applicant’s Submissions of 27 April 2016 at [28].
points, refer to the consequences of removal.11 That is the basis for their application in relation to this issue.
The legal requirements for the Tribunal’s reasoning
[25] Part 6 of the Act governs deportation and part 7 provides for appeals and reviews. In particular ss 206 to 208 provide for appeals to the Tribunal on humanitarian grounds against their liability for deportation. Under s 207(1) the Tribunal is required only to allow such an appeal “where it is satisfied that”:
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
[26] I adopt the terminology of Katz J in Minister of Immigration v Jooste in referring to these paragraphs as the humanitarian limb and the public interest limb respectively.12
[27] In Ye v Minister of Immigration the Supreme Court interpreted the predecessor to s 207(1).13 The Court in Guo v Minister of Immigration subsequently noted that the differences were of no significance for the purposes of that case.14
The same is true here.
[28] The Supreme Court in Ye characterised s 207(1) as “two sequential considerations”:15
The first step is to determine whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person concerned to be removed from New Zealand. If that is not shown, the inquiry ends there and removal takes place. If it is shown that it would, on the statutory basis, be unjust or unduly harsh to remove the person from New Zealand, the decision maker must move to the second inquiry. This concerns whether, despite the injustice or undue harshness, it would in all the circumstances be contrary to the public interest to allow the person to remain
11 IPT Decision, above n 1, at [66], [88], [89], [91], and [93].
12 Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [22].
13 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
14 Guo v Minister of Immigration[2015] NZSC 132, [2016] 1 NZLR 248 at [8].
in New Zealand. A person seeking to avoid removal must demonstrate not only qualifying injustice or undue harshness but also that it would not be contrary to the public interest for them to be allowed to remain in New Zealand.
[29] In Helu v Immigration and Protection Tribunal a majority of the Supreme Court subsequently clarified that the public interest limb is a “control on”, and is to be “addressed separately” from, the inquiry in the humanitarian limb.16 McGrath J stated that “[w]hile the two tests are distinct, and the outcome on neither limb is to be determinative of that on the other, the factors relevant to each overlap”.17 While some of the same factors are considered in the public interest limb as are considered under the humanitarian limb “they are to be viewed through a different lens”.18
[30] In Ye the Supreme Court also identifies and examines the meaning of the three ingredients of the first criterion: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand.19
My analysis
[31] The Tribunal’s decision clearly set out the three ingredients and was clearly structured according to them.20 Indeed, it did not consider whether it was unjust or unduly harsh to deport Ms Wu and Mr Zhong because it had already concluded that no exceptional circumstances of a humanitarian nature applied to them. It is true that, in assessing whether there were exceptional circumstances of a humanitarian nature, the Tribunal did refer to the effects of deportation at several points. But I
consider it was entitled to do so.
[32] The Supreme Court in Ye is clear that the humanitarian and public interest limbs of s 207(1) constitute “two sequential considerations”.21 The majority of the Court confirmed that in Helu. However the Court did not take the same approach to
the three ingredients of the humanitarian limb. Its identification of the three
16 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [151]- [157] (per McGrath J) and [216] (per William Young and Arnold JJ).
17 At [157].
18 At [170].
19 Ye v Minister of Immigration, above n 13, at [34].
20 IPT Decision, above n 1, at [45]-[46].
ingredients simply provides analytical clarity as to what is involved in that limb. I do not consider the majority purported to impose a straightjacket requiring that the analysis of each ingredient may not involve the same factors. In particular, it is difficult to see how “exceptional circumstances of a humanitarian nature” can be identified in a vacuum, without relating them to the prospect of deportation.
[33] It is true that Elias CJ’s dissent in Ye characterised the majority’s approach as involving “a sequenced tripartite test”.22 Her objection was aimed at the majority’s conclusion about the (italicised) linking words in the phrase “exceptional circumstances that would make it unjust or unduly harsh for the person to be removed”.23 The majority held that involves an assessment of whether the exceptional circumstances make removal unjust or unduly harsh i.e. that they are different elements.24 Elias CJ considered that humanitarian circumstances that make removal unjust or unduly harsh are, by definition, exceptional.
[34] While the “sequential” versus “composite” terminology may be a useful label to characterise the different approaches of Elias CJ and the majority in Ye,25 it should not be a basis for reading in to the majority’s approach a more restrictive dimension than is there. Neither the Chief Justice’s approach nor the majority’s approach requires an artificially sequenced or separate consideration of the three ingredients. Neither prohibits the Tribunal from referring to the effects of deportation in determining whether circumstances are exceptional. Otherwise it would have been odd for the majority to have identified “[t]he flavour of the subsection as a whole, with its interweaving of the concepts of exceptional circumstances, injustice or undue harshness and the public interest”.26
[35] Furthermore, even if the majority’s approach in Ye is a separated and sequenced one, that would not have the effect submitted by Ms Curtis. As
McGrath J made clear in Helu, even as between the definitely sequenced analytical
22 At [7].
23 At [37]-[38].
24 At [38].
25 See, for example, Minister of Immigration v Jooste, above n 12 at [25].
26 Ye v Minister of Immigration, above n 13, at [36]. That flavour, it said, was that Parliament “contemplated overstayers being allowed to remain in New Zealand if there were humanitarian circumstances of a sufficiently unusual kind that their remaining would not undermine the general importance of maintaining the integrity of the immigration system”.
steps of the humanitarian and public interest limbs, the factors relevant to each overlap. As Ms Charmley submitted for the Minister here that would also be true in relation to the ingredients of the humanitarian test. Otherwise, the Tribunal may well be at risk of the sort of “over-refinement” of the exercise of its statutory powers of which Elias CJ warns in Helu.27
[36] I consider all that is required by the Supreme Court’s recipe for the humanitarian limb is that the Tribunal should use the right three ingredients. The relevant factors may well overlap. As Edwards J noted in Tuitupou “just because the effects of deportation are relevant to the third ingredient, does not necessarily mean
they are irrelevant to the assessment of the first two ingredients”.28 A practical
approach is called for and that is what the Tribunal used here.
[37] I consider the law is clear on this point. Accordingly, I do not consider that the question of law should be submitted, again, to the High Court for further decision by way of either appeal or judicial review. If my view of the law on this point is contested by the applicants, they can appeal this decision and the matter can be resolved accordingly.
[38] Accordingly, I do not consider that the threshold for leave to appeal in s
245(1), or for leave to apply for judicial review in s 249, is met in relation to this issue.
Issue 2: Did the Tribunal fail to discharge its duty to make further inquiries?
The submissions
[39] Ms Curtis for the applicants submits that the Tribunal did not have regard to the information before it that Olivia, a one-year old New Zealand citizen, would not be granted citizenship of China and may need to apply for visas in order to remain in China. This was additional information provided by email to the Tribunal on
16 October 2015. She also submits that the Tribunal was under a duty to seek further
such information to address Olivia’s interests as a New Zealand citizen child.
27 Helu v Immigration and Protection Tribunal, above n 16, at [1].
28 Tuitupou v Immigration and Protection Tribunal [2015] NZHC 3158 at [52].
Ms Curtis says that articles 3(1) and 12(2) of UNCROC are engaged. She also says the Tribunal’s Practice Note 1/2015 suggests that the Tribunal could not have expected “submissions” on Chinese law to be provided by the appellants without it granting leave to provide them.
[40] Ms Charmley for the Crown submits that the Tribunal had no obligation to seek information beyond that which had been provided to it, by virtue of s 228(2) of the Act and the Court of Appeal’s decision in Fernandes v Immigration and Protection Tribunal.29 She submits the Tribunal gave genuine consideration to both children’s interests as a primary consideration.
What the Tribunal did
[41] In its decision, the Tribunal recorded:30
[Mr Zhong] and [Ms Wu] are also concerned about the status of Olivia if they were to return to China. They are concerned that because of China’s one-child policy they may have to pay a fine. They would also have to pay for her education and for health care, as she is not a Chinese citizen.
[42] The Tribunal inferred that Olivia would most likely accompany her parents, if they were deported, “given that she is still only an infant.”31 Then in the passages most relevant to this challenge, it stated:
[72] Counsel wrote to the Tribunal after the hearing concluded, on
16 October 2015, to indicate that the younger daughter had made contact with the Chinese Consulate General in Auckland. She was apparently told
that Olivia has no right to become a Chinese citizen, and that it would be
necessary for the family to apply for continual visas for Olivia to remain in China, should the family be returned there. In that regard, the Tribunal has been provided with no submissions in connection with the law in China, nor was any evidence provided by or on behalf of the appellants on oath.
[73] Given that Olivia is the child of two citizens of the People’s Republic of China, the Tribunal is not prepared to accept, at face value, that she could not become a citizen of China or that she could not acquire permanent residence in China. No weight can be given to [Ms Wu’s] unsubstantiated bare assertion to that effect. Nor has any evidence been advanced that establishes that there would be any impediment to Olivia obtaining ongoing visas to enable her to remain in China with her parents.
29 Fernandes v Immigration and Protection Tribunal [2014] NZCA 52, [2014] NZAR 544.
30 IPT Decision, above n 1, at [37].
[43] In these proceedings the Tribunal abides the decision of the court as is conventional. However, at my request, counsel for the Tribunal provided a copy of the information provided by the applicants to the Tribunal. It consisted of an email of 16 October 2015 and two previous determinations by the Tribunal. The email stated:
My client Ms Dongmei WU has contacted the Chinese Consuate [sic] General here in Auckland, and she has been told that her youngest daughter Olivia, who was born in New Zealand, and is a New Zealand citizen, has no right to become a Chinese citizen.
Ms Dongmei Wu tells me that this would mean that she would need to apply for continual visas for her daughter Olivia to remain in China, should the family be returned there.
Ms Dongmei Wu tells me that it has been exceedingly difficult to have any kind of reply from the Consulate general of China, and a few days ago she was given this advice.
[44] The Tribunal went on to say that the appellants had not adduced any evidence to show that China imposes heavy penalties on the parents of second and subsequent children.32 Somewhat inconsistently with there being no evidence, the Tribunal then observed that there have been penalties but they have “traditionally varied from province to province”.33 It said there was no evidence of penalties in Hunan or “if so, why the family could not establish themselves in an alternative part of China”.34
It cited an October 2015 New York Times article for the proposition that China had recently revoked its one child policy in favour of a two child policy,35 though it is not clear whether that was in evidence. It reiterated that the appellants bear the responsibility for establishing their claim and considered that they had not established they would be forced to bear a penalty “or, if they did, that any such penalty would be prohibitive”.36
[45] Finally, in this section of its determination the Tribunal pointed to Ms Wu and
Mr Zhong choosing to conceive Olivia knowing they were under investigation as to liability for deportation.37 It acknowledged their view that such matters were not
32 At [74].
33 At [74].
34 At [75].
35 At [75].
36 At [76].
paramount in considering having another child but responded “[t]hey are entitled to express such views but, having made that decision, can hardly point to such a circumstance as being an exceptional humanitarian circumstance”.38 It is not clear whether the Tribunal meant that their choice to conceive Olivia disqualified their circumstances, particularly Olivia’s, from being exceptional or from being of a humanitarian nature.
[46] The Tribunal concluded:
[91] [Ms Wu’s] children are both at an age where their best interests will be substantially served by being in the care of both of their parents, whether in China or in New Zealand. Their needs at their young ages are predominantly nurturing, development, socialisation, education and health. None of those are established, on the evidence, as being significantly compromised if the children reside in China with their parents.
[47] More specifically, the Tribunal said of Olivia:
[93] [Olivia] will remain a New Zealand citizen and will be able to visit family here and eventually return here, if that is what she wishes to do. In the meantime, her parents can make appropriate choices for her in terms of her education. There is no evidence that she faces any particular health- related or other issues that would pose difficulty for her if she were to return to China in the company of her immediate family.
The law governing the Tribunal’s procedure
[48] The Supreme Court’s decision in Ye is known for its proposition that New Zealand statutes, and in particular the Immigration Act, should be interpreted consistently with New Zealand’s international obligations. The Court even went as far as to invoke the principle of legality, without naming it as such, when it stated “[t]his construction gives effect to the principle that Parliament has legislated consistently with international obligations unless the contrary is clearly shown or
unless the language used does not allow that outcome”.39
[49] The Court in Ye took the approach that the humanitarian purposes demonstrated in the equivalent of s 207(1) “must be recognised and respected when other decisions are made regarding the removal from New Zealand of persons
generally, and particularly when the case involves a parent who has one or more
children who are New Zealand citizens”.40 It stated that:41
This approach is supported by the principle that the Act should be interpreted in a way that is consistent with New Zealand’s obligation to observe the requirements of applicable international instruments and, in particular, in present circumstances, those of the United Nations Convention on the Rights of the Child (UNCROC).
[50] In particular, the Court referred to article 3(1) of UNCROC which provides that the best interests of the child shall be “a primary consideration” in all actions by public and administrative bodies concerning children.42 The Court considered this meant the provisions of the Act should be interpreted “so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision-making process”.43 It also stated that “what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test”.44
[51] The Court noted that the Immigration Service had introduced a humanitarian interview procedure “to reflect the obligation to observe art 3(1) and humanitarian concerns generally”.45 It was in this context that the Court observed, of the Tribunal’s predecessor, the Removal Review Authority (RRA):46
[27] So as to give proper effect to s 47(3), the RRA should take a liberal approach, within its powers, to requiring or seeking further information if that is necessary to address the interests of New Zealand citizen children. A case which goes to the RRA must, however, in terms of s 50, be considered by the Authority on the papers and with all reasonable speed. This means the RRA is ordinarily required to deal with the appeal solely on the basis of information supplied to it by the applicant. The RRA does, however, have power to seek or receive further information after the time for filing information has passed.
[52] The Supreme Court’s holding in this regard reflects a duty to “self-inform” that administrative law occasionally imposes on decision-makers. There are not always clear patterns to be discerned in the circumstances when such a duty will be
40 At [23].
41 At [24]-[25].
42 At [24].
43 At [25].
44 At [25].
imposed. Philip Joseph’s authoritative text cites cases that go both ways, characterises the duty as unwieldy and opposes its use.47 The texts by Matthew Smith and Graham Taylor are more open to the existence and usefulness of the duty.48 Interestingly, the cases cited by all these commentators suggest that immigration cases tend to be among those which embrace rather than reject a duty to make further inquiries. This may be because immigration decisions attract the heightened attention that usually accompanies human rights interests and international human rights obligations on New Zealand.
[53] Section 226 of the Act continues to provide that it is the responsibility of an appellant “to establish his or her case or claim” and that the appellant “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”. And s 229 empowers the Tribunal to require the Crown to seek and provide information relevant to an appeal, though no party to an appeal is empowered to request the Tribunal to exercise that power.
[54] However, s 228(2) of the Act, passed after the Court’s decision in Ye, is now rather stronger in absolving the Tribunal of a duty to self-inform. Section 228 says:
228 Information Tribunal may consider
(1) When considering an appeal or a matter, the Tribunal may seek information from any source.
(2) However, the Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant or the affected person and the Minister, the chief executive, or a refugee and protection officer (as the case may be), and may determine the appeal or matter only on the basis of the information, evidence, and submissions provided by those persons.
47 Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Wellington, Brookers Ltd, 2014) at 1051 (Ye is not cited).
48 Matthew Smith New Zealand Judicial Review Handbook (Wellington, Brookers Ltd, 2011) at
51.3; Graham Taylor Judicial Review: A New Zealand Perspective (Wellington, LexisNexis NZ Ltd, 2014) at 15.50-15.52.
My analysis
[55] In relation to the first issue, was the Tribunal entitled not to have regard to the information Ms Wu reported to it from the Chinese Consulate-General? That information related to the legal status of a New Zealand citizen child, Olivia. The Tribunal was concerned that it had been provided with no submissions on Chinese law or evidence on oath. Yet it was “not prepared to accept, at face value, that she could not become a citizen of China or that she could not acquire permanent
residence in China”.49 It gave “no weight” to Ms Wu’s “unsubstantiated bare
assertion to that effect” although it apparently had no other evidence on that matter, and was prepared to rely on a New York Times report, to Ms Wu’s detriment, on another matter.
[56] In relation to the second issue, I have not been able to locate a court decision that considers the meaning of s 228(2) in light of the Supreme Court’s decision in Ye and its human rights context and international law implications. The Crown points to Fernandes. But in that case the Court of Appeal explicitly agreed that the question of whether the Tribunal “might have a duty to take proactive steps to make
further inquiries” did not arise on the facts of that case.50 And, despite the passage of
s 228(2), the Court noted that the circumstances in which the Tribunal might be required to take proactive steps had been “carefully spelled out” by the Supreme Court in Ye.51 This does not resolve the issue in the Crown’s favour.
[57] There are important issues tied up with the interpretation of s 228(2). Do its words suffice to displace the Tribunal’s duty to self-inform as reflected by the Supreme Court in Ye and grounded in international human rights law? Are they sufficient when the principle of legality, articulated in Ye, presumes that Parliament has legislated consistently with international obligations unless the language used “does not allow” that outcome?52
[58] Resolving these questions of law would require a thorough treatment of the legislative history of s 228, submissions on the duty to self-inquire and the meaning
49 IPT Decision, above n 1, at [73].
50 Fernandes v Immigration and Protection Tribunal, above n 29, at [27].
51 At [33].
52 Ye v Minister of Immigration, above n 13, at [32].
of Ye, submissions on the implications of the international human rights context, and submissions on whether the Tribunal was lawfully able to allocate “no weight” to the only information it apparently had about a New Zealand citizen child’s legal status in the country to which its decision would send her.
[59] These questions of law, particularly regarding s 228(2), are novel and precedential. The answers have a significant effect on the individuals here. They go to the purpose of the Act in balancing the national interest and the rights of individuals. I consider the questions are of general and public importance and that it is in the interests of justice that full argument on them be heard by the High Court. If the Tribunal has applied the wrong law in relation to either issue its decision is unjust and the effect on Ms Wu, Mr Zhong, Xinyuang and Olivia should not be countenanced to stand.
[60] This means that, in my view, leave to appeal should be granted. I have not fully considered, and was not addressed in argument by counsel on, whether these legal issues arising in the appeal would differ from those arising in a judicial review. It may be that they would not. But that is not clear to me given the duty to self- inquire is firmly rooted in the law of judicial review and the applicants are seeking relief that is quintessentially that of judicial review under the Judicature Amendment Act 1972. If the issues under appeal and review do differ, the public importance of the issues and the interests of justice, in this context of human rights, militate in favour of the judicial review being heard too. Since there will be a hearing anyway, there is no administrative prejudice to the Crown in the full scope of these issues being heard, whether it be by way of appeal or judicial review.
[61] Accordingly, I grant the applications for leave to appeal, and to bring judicial review proceedings, in relation to the questions as expressed below at paragraph [63].
Result
[62] I decline the applications for leave to appeal, and to bring judicial review proceedings, in relation to whether the Tribunal failed to properly apply the legal test in s 207(1)(a) by considering the implications of deportation of Ms Wu and
Mr Zhong when it determined whether there were exceptional circumstances of a humanitarian nature.
[63] I grant the applications for leave to appeal, and to bring judicial review proceedings, in relation to the questions:
(a) Did the Tribunal err in law, by failing to have regard to relevant considerations, in according no weight to the information provided to it by Ms Wu about the status under Chinese law of Olivia, a New Zealand citizen child?
(b)Did the Tribunal have a legal duty to inquire into the status under Chinese law of Olivia, a New Zealand citizen child of Ms Wu and Mr Zhong, in order to address her interests in deciding on their deportation?
Palmer J
9
7
1