Ye v Minister of Immigration
[2008] NZCA 291
•7 August 2008
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NOTE: ANY PUBLICATION OF THE ADDENDUM TO GLAZEBROOK J'S JUDGMENT IS TO BE IN ACCORDANCE WITH THE RESTRICTIONS SET OUT IN THAT ADDENDUM AT [366] - [369].
IN THE COURT OF APPEAL OF NEW ZEALAND
CA184/06 [2008] NZCA 291
BETWEEN WILLIE YE, CANDY YE AND TIM YE Appellants
ANDMINISTER OF IMMIGRATION First Respondent
ANDYUEYING DING Second Respondent
CA192/06
AND BETWEEN ALAN QIU AND STANLEY QIU Appellants
ANDMINISTER OF IMMIGRATION First Respondent
ANDHE QIN QIU Second Respondent
ANDXIAO YUN QIU Third Respondent
CA205/05
AND BETWEEN MINISTER OF IMMIGRATION Appellant
ANDYUEYING DING Respondent
Hearing: 5, 6 and 7 June 2007
Court: Glazebrook, Hammond, Chambers, Robertson and Wilson JJ
PUBLIC VERSION - YE & ORS V MINISTER OF IMMIGRATION AND ANOR CA CA184/06 7 August
2008
Counsel: R E Harrison QC and M K Macnab for Appellants in CA184/06
A G Mahon for Appellants in CA192/06
I C Carter and M G Coleman for Appellant in CA205/05 and First
Respondent in CA184/06 and CA192/06
I C Bassett for Respondent in CA205/05 and Second Respondent in
CA184/06
No appearance for Second and Third Respondents in CA192/06
Judgment: 7 August 2008 at 4.00 pm
JUDGMENT OF THE COURT
CA184/06 (The Ye children’s appeal)
A The appeal is allowed.
BThe matter is remitted to the Immigration Service to be reconsidered, if it sees fit, in light of the reasons for judgment given by Hammond and Wilson JJ.
CThe cross-appeal is allowed but only to the extent that the declaration made by the High Court that the appellants cannot be removed from New Zealand without parental consent is set aside.
DCosts of $12,000 plus usual disbursements are to be paid by the Crown to the second respondent.
CA192/06 (The Qiu children’s appeal) E The appeal is dismissed.
FThe cross-appeal is allowed but only to the extent that the declaration made by the High Court that the appellants cannot be removed from New Zealand without parental consent is set aside.
G There is no order as to costs.
HThe second and third respondents must not be removed from New Zealand within 20 working days after the date of this decision. If, within that time, they or the appellants apply for leave to appeal to the Supreme
Court, the second and third respondents must not be removed from New Zealand before that application is determined, unless the Supreme Court determines otherwise.
CA205/05 (The Minister of Immigration’s appeal) I The appeal is dismissed.
J There is no order as to costs.
REASONS
Glazebrook J [1] Hammond and Wilson JJ [380] Chambers and Robertson JJ [425]
GLAZEBROOK J
Table of Contents
Para No
Introduction [1] The Ye/Ding family [1] The Qiu family [8] Issues [11]
Should the welfare and best interests of any child be the first and paramount consideration in any immigration decision
affecting the child or his or her parents? [14]
CARE OF CHILDREN ACT (CCA) [18] Policy analysis of CCA [19] Textual analysis of CCA [25] APPELLANTS’ SUBMISSIONS [25]
USE OF TERM “PROCEEDINGS” [34] CHANGE FROM “RELATING TO” TO “INVOLVING” [49] CHANGE FROM “SHALL REGARD” TO “MUST BE” [52] SECTION 148 OF THE CCA [53] CCA BINDING THE CROWN [55] Conclusion on effect of CCA [56]
IS THERE OTHERWISE A CHANGED STANDARD? [59]
Appellants’ submissions [60] Changed standard in domestic law [64] Alleged misinterpretation of the international standard [65] Significance of art 41 of UNCROC [72] CRC Committee’s general comments [74] Conclusion on changed standard argument [79]
What is the proper application of the Puli’uvea test? [80] The contentions of the parties [81] How should the best interests of the child be taken into account? [84] Should the test be linked to s 47(3) of the Immigration Act? [91]
What is the relevance of the New Zealand citizenship of any
children of a person liable for removal when considering whether
to make a removal order or whether to cancel a removal order? [94]
Submissions of the parties [94] Citizenship rights [97] Parental decision or State action? [102] Postponement of citizenship rights [108] Relevance of citizenship [110]
What are the factors to be weighed against the New Zealand citizenship and the welfare and best interests of any child of
a person subject to removal? [116]
Right to exclude or expel non-citizens [116]
Limits on this right [118] How should the various factors be balanced? [123] Detriment to child [124] Countervailing factors [128]
Result of balancing exercise [130]
Do children have the right to be heard and have their views taken into account in any immigration decision affecting
their parents? [134]
Submissions [134] Right to be heard [138] How the right is exercised [144] How the views should be weighed [146]
How should information as to the best interests of any child
(including any assessment of their current and likely future
situation) be acquired? [147]
Submissions [147]
Acquiring information [148]
When should the welfare and best interests of any children
and their citizenship be taken into account? [155]
Submissions [155]
Timing of consideration [159]
Does the current process adequately fulfil the legal
requirements? [165]
Submissions [165] Current procedures [169] Assessment of current procedures [177] Summary of factors [184] Best interests of the child [185]
Citizenship [189] Right to control borders [190] Parental conduct [191] Balancing of factors [192] Summary of process [194]
What is the effect of the 1999 amendments to the
Immigration Act? [202]
Parliament’s Purpose [206] Statutory indications within the Immigration Act [215] Processes not explicit in statute [220] Specific issues in these appeals [229] Basis of removal decision for Ms Ding [231]
Basis of removal decision for Mr and Mrs Qiu [236] ISSUES COMMON TO BOTH FAMILIES [239] The children’s right to be heard [239] Submissions [239]
Were the appellants heard? [241] Was proper information on the children’s situation obtained? [243] Language [249] Status of Ye and Qiu children as “black children” in China [256] The appellants’ New Zealand citizenship [270] Submissions [270] Assessment [271] ISSUES RELATING PRIMARILY TO THE YE CHILDREN [275] Ms Ding’s state of depression [275] Submissions [275] Evidence as to Ms Ding’s depression [277] Assessment by the Service [283]
Was Ms Ding’s depression taken into account? [285] Mr Ye’s alleged violent behaviour [290] Contentions of the parties [291] Should it have been discounted? [292] Likelihood of Ye children remaining in New Zealand [293] Submissions [293] Children staying or going? [294] Wardship [297] Remedy [301] Standard of review [303] Position of the Ye children [306] Position of the Qiu children [316]
Result I would have arrived at [317] CROWN’S CROSS-APPEAL [318] Were the children wrongly joined as parties? [319] Submissions [319] Discussion [322] Should litigation guardians have been appointed? [329] Was the parens patriae jurisdiction wrongly invoked? [332] Submissions [332] Discussion [333] Should there have been court appointed counsel? [334]
Submissions [334]
Discussion [336] Was irrelevant evidence admitted? [341] Submissions [341] Discussion [343]
Was the declaration of Baragwanath J that the children
should not be removed from New Zealand necessary? [345]
Crown submissions [345] Social worker’s affidavit [347] Declaration unnecessary [351]
Did the Judge wrongly mould the Qiu case into a mirror
of the Ding case? [352]
Submissions [352] Discussion [353] Should the interim orders have been made? [356] Result and costs [358] Addendum [365]
Introduction
The Ye/Ding Family
[1] Willie, Candy and Tim Ye are New Zealand citizens. They were born in New Zealand on 29 April 1997, 21 September 1998 and 29 May 2000 respectively, of Chinese parents who were, at the time of their birth, lawfully in New Zealand on temporary permits. The last temporary permit of their parents expired on
1 September 2000. Appeals to the Removal Review Authority (RRA) were filed by both parents in October 2000 but were abandoned in March 2001.
[2] The children’s father, Mr Wei Guang Ye, was removed from New Zealand on 23 December 2004, having been served with a removal order on 19 November
2004. An application for an interim order to prevent Mr Ye’s removal had been refused by the High Court on 21 December 2004 and the Associate Minister of Immigration declined a request for a special direction under s 130 of the Immigration Act 1987 on 22 December 2004. There had been four previous requests on behalf of Mr Ye and Ms Yueying Ding (the mother of the Ye children) for a special direction by the Minister which had all been declined
[3] After Mr Ye had been taken into custody prior to his removal, Ms Ding was allowed to remain with the children. She too was served with a removal order on
23 August 2005. Following a humanitarian interview, Mr Zhou, an immigration officer, refused to cancel that order. On 1 September 2005, the High Court made an interim order preventing Ms Ding’s removal from New Zealand. On 15 August
2006, Ms Ding’s application for judicial review of the decision to make a removal order and the refusal to cancel it was declined by Baragwanath J, in a decision now reported as Ding v Minister of Immigration (2006) 25 FRNZ 568 (HC).
[4] The Ye children were joined as plaintiffs to the judicial review proceedings in the High Court and they now appeal against Baragwanath J’s decision. Their main contention is that the Care of Children Act 2004 (CCA) and/or the changing national and international views of children’s rights require their welfare and best interests to be the first and paramount consideration in any immigration decision affecting their mother, Ms Ding. If that standard is applied, they submit that the decision to remove Ms Ding cannot stand. They submit further that the Immigration New Zealand Operations Manual’s policy provisions dealing with such decisions are unlawful and accordingly invalid.
[5] The Ye children’s secondary challenge is that the decision to remove Ms Ding and the decision not to cancel the removal order were not lawfully undertaken, even using the test promulgated in Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA). That test requires the welfare and best interests of any children to be taken into account as a primary consideration in any immigration decision affecting their parents.
[6] It was also argued that this Court should not adopt the alternative test postulated by Baragwanath J in his judgment. He said that, were he free to do so, he would align the Puli’uvea test with that encapsulated in s 47(3) of the Immigration Act. Section 47(3) states that appeals against the requirement to leave may only be brought where 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 be contrary to the public interest to allow them to remain.
[7] Whatever the correct test, the Ye children assert that they were wrongly denied their right to be heard and to have their views taken into account, both in relation to the decision to make a removal order with regard to Ms Ding and the decision not to cancel it. The Ye children also maintain that their New Zealand citizenship was not properly taken into account in the decisions, that the decisions were taken on the basis of inadequate information and that a number of relevant matters were not adequately taken into account.
The Qiu family
[8] Alan and Stanley Qiu are also New Zealand citizens, born in New Zealand of Chinese parents. Alan Qiu was born on 12 June 2000. Some two months before his birth, Alan’s mother, Mrs Xiao Yun Qiu, had been served with a removal order but his father, Mr He Qin Qiu, was lawfully in New Zealand when Alan was born. Mr Qiu’s work permit expired on 22 September 2000 and Stanley Qiu was born on
8 April 2005 when both parents were unlawfully in New Zealand.
[9] Mrs Qiu had appealed to the RRA against an earlier removal order. Her appeal was declined on 11 June 2001 and her application for judicial review of that decision was dismissed on 21 December 2001. On 16 July 2002, the Minister of Immigration refused to grant a special direction in relation to Mrs Qiu. A special direction regarding Mr Qiu had likewise been refused on 26 April 2001. Mr and Mrs Qiu were served with further removal orders on 14 June 2005 and a humanitarian interview of Mr Qiu took place on 15 June 2005. There has not yet been a humanitarian interview of Mrs Qiu.
[10] Mr and Mrs Qiu’s application for judicial review relating to the 2005 removal orders was heard with that of Ms Ding. Their application was also declined by Baragwanath J in the judgment referred to at [3] above. Like the Ye children, Alan and Stanley Qiu were joined as plaintiffs to their parents’ judicial review application. They now appeal against Baragwanath J’s decision. Their grounds essentially mirror those of the Ye children. Where the issues raised on their behalf are the same, the Ye children and the Qiu children are referred to generically as “the appellants” in this judgment.
Issues
[11] There are a number of general issues raised by the appeals. I propose to deal with these in the following order:
(a) Should the welfare and best interests of any child be the first and paramount consideration in any immigration decision affecting the child or his or her parents?
(b) What is the proper application of the Puli’uvea test?
(c) What is the relevance of the New Zealand citizenship of any children of a person liable for removal when considering whether to make a removal order or whether to cancel a removal order?
(d)What are the factors to be weighed against the New Zealand citizenship and the welfare and best interests of any child of a person subject to removal?
(e) How should the various factors be balanced?
(f) Do children have the right to be heard and have their views taken into account in any immigration decision affecting their parents?
(g) How should information as to the best interests of any child (including any assessment of their current and likely future situation) be acquired?
(h)When should the welfare and best interests of any children and their citizenship be taken into account?
(i) Does the current process adequately fulfil the legal requirements? (j) Summary of factors
(k) Summary of process
(l) What is the effect of the 1999 amendments to the Immigration Act?
[12] I then deal with the specific matters raised with regard to each family, followed by a discussion of remedy. Issues common to both families are whether the children’s right to be heard was breached, the level of the children’s language skills, the status of the Ye and the Qiu children as “hei haizi” or “black children” in China and the alleged failure to take this and the children’s New Zealand citizenship into account in the decision-making. With regard to the Ye children, their mother’s depression, their father’s alleged violence and the likelihood that they will remain in New Zealand even if their mother is removed, have been raised as issues not properly taken into account.
[13] The Crown has appealed and cross-appealed against Baragwanath J’s judgment on a number of largely procedural issues. I deal with these from [318]. The results of the various appeals and cross-appeals and costs are discussed from [358].
Should the welfare and best interests of any child be the first and paramount consideration in any immigration decision affecting the child or his or her parents?
[14] The appellants base their argument that the “first and paramount” consideration applies to the decision-making powers under the Immigration Act on two alternative grounds. Their first argument is based on the CCA and their second on the premise that the standard both in New Zealand and at international law has changed.
[15] If the appellants are correct this will have far-reaching consequences in the immigration context. The first and paramount principle was said, in J v C [1970] AC
668 at 710 – 111 (HL) (per Lord MacDermott), to mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. It connotes a process whereby, when all the relevant matters are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare. It is the first consideration “because it is of first
importance” and the paramount consideration “because it rules upon or determines the course to be followed”.
[16] Lord MacDermott’s formulation was quoted with approval and applied in Re G (Children) (Residence: Same-sex Partner) [2006] 1 WLR 2305 at [30] (HL). The principle has also been applied in New Zealand in D v S [2002] NZFLR 116 at [30] (CA), and D v S [2003] NZFLR 81 at [17] (CA). See also Henaghan and Atkin (eds) Family Law Policy in New Zealand (3ed 2007) at 302 and Webb and others (eds) Family Law Service (looseleaf last updated June 2008) at [6.112] for a discussion of J v C.
[17] If the first and paramount standard is applied in the immigration context, therefore, the welfare and best interests of any children will likely directly dictate the result of the decision-making. I note, however, that in interpreting a constitutional provision (in the criminal justice context) which states that “a child’s best interests are of paramount importance in every matter concerning a child”, the majority of the Constitutional Court of South Africa suggested a more nuanced child-centred approach – see M v The State [2007] ZACC 18 at [24] – [26]. The majority said that the best interests of the child standard must be flexible as individual circumstances will determine which factors secure the best interests of the child. While the word “paramount” is emphatic, the provision cannot mean that the direct or indirect impact of a measure or action on children must in all cases oust or override all other considerations. It cannot act as an absolute and unrealistic trump of other rights and was subject to reasonable and justifiable limits.
CARE OF CHILDREN ACT (CCA)
[18] The appellants argue that the principle in s 4 of the CCA – that the welfare and best interests of the child must be the first and paramount consideration (see at [25] below) – must be applied in the immigration context. They base this submission both on the policy underlying the CCA and on a textual analysis of the Act.
Policy analysis of the CCA
[19] In the appellants’ submission, the legislative history of the CCA shows that it was passed in recognition of the all-pervading nature of the first and paramount standard embodied in it, reflecting the fact that the first and paramount standard has now become the New Zealand domestic law standard for determining issues relating to the welfare and best interests of New Zealand’s children.
[20] It is true that the first and paramount standard is the standard embodied in all modern legislation and policies directly dealing with issues relating to children and their families. The appellants’ argument goes further, however. They suggest that the CCA was intended to apply to all other legislation where the interests of children may be affected, whether directly or indirectly. Potentially, if interpreted as broadly as the appellants submit should be the case, then most legislation would be affected. Legislation regulating tenancy matters, bail and sentencing are examples that immediately come to mind. Dr Harrison QC, for the appellants, does accept that the standard in s 4 of the CCA will not mandate the result in all situations. In his submission, whether it does or not will depend on the legislative context. He accepts that the legislative context in criminal matters will likely override the CCA but does not accept that this is the case in the immigration context.
[21] I reject the appellants’ submissions. If the CCA was to permeate all legislation in the manner contended by the appellants, then one would have expected it to have said so explicitly (which it does not). One would also have expected, as is the case with the New Zealand Bill of Rights Act 1990 (BORA), that the means of resolving any conflict with other provisions in other legislation would have been included in the CCA. It would not have been left to the courts to determine, with no legislative guidance, which other Acts were subject to the CCA standard and which were not.
[22] Furthermore, in the Parliamentary debates on the CCA there was no mention of the allegedly all-encompassing nature of the new Act. It is unlikely that a significant change of the kind contended for by the appellants would have been made without full Parliamentary discussion. There is nothing in the legislative history to
suggest that the “first and paramount” standard was to extend beyond the CCA itself and closely-related legislation where the interests of children are directly at issue – see the then Associate Minister of Justice, the Hon Lianne Dalziel’s introductory speech in the House at (24 June 2003) 609 NZPD 6539.
[23] The explanatory note to the Care of Children Bill, no. 54-1 states that the CCA replaces the Guardianship Act 1968 (GA) with the view of modernising the law about guardianship and care of children. The Bill was said to amend two other Acts that deal with “closely-related matters”, being the procedures of the Family Court (Family Proceedings Act 1980) and parental status (Status of Children Act
1969). The Immigration Act is not listed in those “closely-related matters” and there was no attempt to amend the Immigration Act to accommodate the new standard and to deal with any practical implications that may have had on removal decisions (and possibly entry decisions as well).
[24] Indeed, there was no mention of immigration matters in the course of the Parliamentary debates in the three readings of the Care of Children Bill. Considering the wide-ranging effect any change in standard would have on immigration matters (in effect perhaps dictating the decision where children are involved – see at [17] above) and the lively interest always generated by immigration policy, this lack of discussion would be most surprising if indeed the CCA was intended to apply in the immigration context. If the CCA does permeate into the immigration context, then it would have to be assumed that Parliament did so inadvertently. I would not make this assumption lightly and certainly not in the absence of very clear words in the statute itself. I now turn to a textual analysis of the CCA.
Textual analysis of CCA
APPELLANTS’ SUBMISSIONS
[25] The appellants’ argument is based on s 4(1) of the CCA which states:
4. Child’s welfare and best interests to be paramount
(1) The welfare and best interests of the child must be the first and paramount consideration–
(a) in the administration and application of this Act, for example, in proceedings under this Act; and
(b)in any other proceedings involving the guardianship of, or role of providing day-to-day care for, or contact with, a child.
[26] The appellants acknowledge that the words “first and paramount” are not new and that the paramountcy principle has its origins in s 23(1) of the GA. That provided:
In any proceedings where any matter relating to the custody or guardianship of or access to a child, or the administration of any property belonging to or held in trust for a child, or the application of the income thereof, is in question, the Court shall regard the welfare of the child as the first and paramount consideration. The Court shall have regard to the conduct of any parent to the extent only that such conduct is relevant to the welfare of the child.
[27] The appellants submit, however, that there have been vital changes in the wording of the CCA which mean that the paramountcy principle and the ambit of s 4 extends well beyond court proceedings to determine custody, guardianship and access and that it applies outside the family law context. They submit that the “compendious” wording of s 4 is much wider than the wording in s 23(1) of the GA.
[28] The first change in wording pointed to by the appellants is the use of the word “proceedings” in s 4 of the CCA but without the GA’s reference to “the Court”. They submit that the word “proceedings” in s 4 by implication encompasses administrative decisions. In their submission this means that the removal processes under the Immigration Act are, where children are involved, proceedings involving “the guardianship of, or role of providing day-to-day care for, or contact with, a child” within the meaning of s 4(1)(b) of the CCA.
[29] The appellants point out that guardianship is very broadly defined in s 15 of the CCA. Under s 15(a) the term guardianship of a child means having all “duties, powers, rights, and responsibilities” of a guardian of a child. This phrase is in turn defined in s 16 as including “determining for or with the child, or helping the child to
determine, questions about important matters affecting the child”. The “important matters” include, under s 16(2) of the CCA, changes to the child’s place of residence (including changes arising from travel by the child) that may affect the child’s relationship with his or her parents or guardians; medical treatment; where and how the child is to be educated; and the child’s culture, language and religion. As the appellants’ submit, all of these matters can potentially be affected by immigration decisions.
[30] The second wording change in s 4 of the CCA which the appellants suggest has significance is the change from the phrase “relating to” in s 23(1) of the GA to “involving” in s 4(1)(b). The appellants argue that “involving” is a much broader formulation and that it encompasses not just the immediate subject matter of the decision but also the indirect material consequences of that decision-making insofar as it impacts on the guardianship of, the role of providing day-to-day care for, or the contact with, a child.
[31] Thirdly, the appellants refer to the change in wording from “shall regard” in s 23(1) of the GA to “must be” in s 4 of the CCA as demonstrating that a higher standard has been imposed under the CCA.
[32] As well as the wording changes between the GA and the CCA, the appellants rely on s 148 of the CCA. They submit that, had Parliament intended to exclude the Immigration Act from the ambit of s 4 of the CCA, the Immigration Act would have been added to the list in s 148. Section 148 states:
148 Other Acts not affected
(1) Nothing in this Act affects the following Acts:
(a) Children, Young Persons, and Their Families Act 1989: (b) Family Proceedings Act 1980.
[33] The last argument put forward by the appellants is made by reference to s 12 of the CCA, which states that the CCA binds the Crown.
USE OF TERM “PROCEEDINGS”
[34] The first change in wording the appellants rely on between the CCA and the GA is an alleged use of the term “proceedings” in the CCA in a wider sense than in the GA – see at [28] above. I do not accept this submission.
[35] The word “proceedings” habitually denotes pure court matters and does not include administrative decisions – see for example r 3 of the High Court Rules which defines proceeding as “any application to the Court for the exercise of the civil jurisdiction of the Court other than an interlocutory application”. In my view, there is nothing to suggest that the word “proceedings” in the CCA should be accorded other than its ordinary and natural meaning.
[36] The appellants’ argument has been rendered possible by the fact that, unlike in the GA, there is no reference to the courts in s 4(1) of the CCA. This is explained by the structure of the provision. It is clear from s 4(1)(a) that the first and paramount standard applies to the administration and application of the CCA generally. In this regard it is not to be limited to court proceedings. Section 4, therefore, could not limit its ambit to decisions by courts.
[37] Section 4(1)(a), however, provides the prime indication that the word “proceedings” in s 4(1)(b) is used in its traditional sense. Section 4(1)(a) states that the paramountcy provision applies in “the administration and application of this Act, for example, in proceedings under this Act” [emphasis added]. This makes it clear that not all the varied actions or mechanisms in administering or applying the CCA are considered to be “proceedings”.
[38] A further contextual indication that the word “proceedings” has its ordinary and natural meaning is, as pointed out by the Crown, found in s 7 of the CCA. This provides:
7. Lawyer to act for child
(1)A Court may appoint a lawyer to act for a child who is the subject of, or who is a party to, proceedings (other than criminal proceedings) under this Act.
…
(4)The lawyer may call any person as a witness in the proceedings, and may cross-examine witnesses called by a party to the proceedings or by the Court.
[39] Here “proceedings” is mentioned in terms of court proceedings and not administrative decision-making. I accept the Crown submission that the reference to the fact that a “Court may appoint a lawyer to act for a child who is the subject of, or who is a party to, “proceedings” shows that “proceedings” is used in the traditional sense, at least in s 7(1). Court is defined in s 8 as “a Court having jurisdiction in the proceedings”. Section 7(4) also uses the term “proceedings” in its traditional sense. Section 139(2) of the CCA relating to the publication of reports also makes reference to “proceedings” as matters dealt with in Court.
[40] The appellants rely on ss 30, 44, 45, 46, 48, 53, 54, 65, 68, 69, 73, 77, 118 and 125 of the CCA as evidence of a wide range of “proceedings” in the CCA which go beyond Court proceedings in the traditional sense. Many of these provisions, however, do not mention the word “proceedings” at all. See for example the sections on dispute resolution (s 44); review of decisions made by parents on important matters (s 46); parenting orders and contravention of such orders (ss 48 and 68); warrants to enforce orders for contact with a child (s 73); counselling (ss 65 and 69); circumstances where a lawyer must act for applicant (s 116); and the Court’s power to prevent removal of a child from New Zealand in order to defeat an application under the Act (s 118).
[41] A number of the other sections of the CCA referred to by the appellants, such as ss 30, 45, 53, 54, 77 and 125, do use the word “proceedings”. The term is, however, used in reference to pure court proceedings – for example the issue of jurisdiction when “proceedings” have been filed in both the High Court and Family Court and are removed from the High Court to a Family Court and vice versa (s 30); proceedings to obtain separation orders (s 53); orders declaring a marriage or civil union void ab initio or dissolving it (s 53); proceedings used to get a protection order (s 54); contempt of court proceedings (s 77); and provisions regarding the Court’s jurisdiction relating to certain types of hearings (s 125). Section 45 provides that dispute resolution is to be utilised where a spouse or partner is applying for certain
orders under the CCA. It does not state that the “dispute resolution” itself, as opposed to the applications for the orders, falls within the definition of “proceedings”.
[42] There is only one indication that the CCA may extend the word “proceedings” in s 4(1)(b) beyond quasi-judicial bodies. Under ss 22 and 23(2)(b) of the CCA, reference is made to “proceedings” under Part 2 of the Children, Young Persons and Their Families Act 1989 (CYPFA). Sections 22, 25(4), 33, 37 and 38 of Part 2 of the CYPFA refer to a Family Group Conference (FGC) as a proceeding. Sections 22 and 23 of the CCA which refer to Part 2 of the CYPFA are provisions which govern the appointment of an additional guardian. One criterion for appointment is that the proposed additional guardian must never have been “involved in proceedings concerning a child under this Act, a former Act corresponding to this Act, or Part 2 of the Children, Young Persons, and Their Families Act 1989”.
[43] It is unlikely that these provisions intended an FGC to fall within “proceedings” as this would mean that anyone involved in an FGC would be automatically excluded from becoming a guardian. This cannot be so as involvement in an FGC may be a necessary part of being a caregiver of a child and is seen as an innocuous and conciliatory endeavour. It is more likely that s 23 of the CCA is referring to court proceedings covered by ss 67 – 73 (also within Part 2 of the CYPFA) which establish care and protection declarations. It seems that reference to a FGC as a “proceeding” was merely an unintentional and lax use of the word which should not alter the interpretation of the word in s 4 of the CCA.
[44] The appellants referred to the use of the word “proceedings” in a wider sense in other legislation, for example in BORA and in the Immigration Act itself. The issue is not, however, whether the word can be used in a wider sense in a different context or in other legislation. It is whether it is used in a wider sense in the CCA. In any event, while s 3(b) of BORA makes it clear that BORA is applicable to administrative decision-making, s 3(b) does not use the word “proceedings” and therefore is irrelevant to the argument as to whether the term “proceedings” in the CCA covers administrative actions.
[45] It is true that the term “proceeding” appears in the Immigration Act in different contexts and senses. In some instances it refers to one or more types of court proceedings. In other cases, it expressly refers to “proceedings” before the various administrative appeal bodies which the Immigration Act creates. At most, therefore, the Immigration Act extends the term “proceedings” to cover proceedings before quasi-judicial bodies.
[46] The only provisions where the term “proceeding” is used in a wider sense are those relating to the appointment of responsible adults – see Immigration Act ss 141B - D. In s 141B(6) it is stated that “the role of a responsible adult relates to those matters or proceedings in relation to which the nomination was made … ” [emphasis added]. Section 141B(2) which describes the matters for which a minor must be represented by a responsible adult which includes the “making, serving, and execution of a removal order or a deportation order in the minor's name”. Since these have been specifically defined in s 141B(6) as “matters or proceedings”, this does not aid me greatly in the interpretation of “proceedings” in either the CCA or the Immigration Act.
[47] The appellants submit that it is clear from the Immigration Act as a whole that the removal process considered in its entirety, as embodied in ss 53 – 62 of the Immigration Act, is a proceeding. I do not accept this submission, in particular in light of the 1999 amendments to the Immigration Act.
[48] Under the 1999 amendments, the obligation to leave New Zealand exists from the moment that a person is in New Zealand unlawfully. There is no need for any prior administrative or quasi-judicial proceeding before this obligation arises. Appeals to the RRA must be brought within 42 days after the later of: the day the person becomes unlawfully in New Zealand, or the day when the individual receives notification of confirmation of refusal to issue a permit – see s 47(2).
CHANGE FROM “RELATING TO” TO “INVOLVING”
[49] The next change relied on by the appellants is from “relating to” in the GA to the use of the word “involving” in the CCA – see at [30] above.
[50] I see the two phrases as broadly analogous. The proposition that such a subtle change (replacing the very general words “relating to” with the equally general term “involving”) has created a whole new sphere of application for the paramountcy standard right across the statute book is not convincing.
[51] The appellants criticise Baragwanath J in the judgment under appeal and Asher J, in Qiong v Minister of Immigration [2007] NZAR 163 (HC), for interpreting “involving” as meaning “directly involving”. I would phrase this in a different way. I would say that Baragwanath and Asher JJ refused to interpret the word “involving” as meaning “directly or indirectly involving”. They were correct not to do so in the absence of explicit wording to that effect.
CHANGE FROM “SHALL REGARD” TO “MUST BE”
[52] The third change relied on by the appellants is from “shall regard” in the GA to “must be” in the CCA – see at [31] above. This is, however, a function of the change in the structure of the sentence and the more modern wording of the CCA rather than a change in substance.
SECTION 148 OF THE CCA
[53] I turn now to the appellants’ reliance on s 148 of the CCA – see at [32] above. The Acts listed in s 148 are ones that directly relate to children and their families. They are thus “closely-related” Acts – see at [23] above. It is unremarkable that it was considered necessary to make it clear that these closely- related Acts were not impliedly overruled. Merely because other Acts, such as the Immigration Act and the Sentencing Act 2002, are not listed in s 148 does not preclude a determination that they are not subject to s 4 of the CCA. As indicated above, had it been intended that the CCA permeate all other Acts (and the Immigration Act in particular), one would have expected it to have said so – see above at [24].
[54] The appellants cite the example of s 55 of the Human Rights Amendment Act
2001 (which inserted two new sections, ss 149C and 149D, into the Immigration Act
acknowledging that immigration matters involve different treatment on the basis of personal characteristics) as evidence that, had Parliament wished to exclude the Immigration Act from the ambit of s 4 of the CCA, it would have done so. There is no doubt that the Immigration Act could have been excluded explicitly from the operation of the CCA. There was, however, no need to do so as the CCA, for the reasons outlined, does not extend across the statute book. It has no wider ambit than the GA, which, as accepted by the appellants, did not extend into immigration matters.
CCA BINDING THE CROWN
[55] The appellants’ final argument is that the provision binding the Crown in the CCA shows that it was intended to have the wide ambit they suggest. Given the role the State may take in the administration of the CCA and in children’s lives, the need for the CCA to bind the Crown is not surprising. Indeed, provisions binding the Crown are now usual unless there is a particular reason for the Crown not to be bound – see Cabinet Office Circular of 13 March 2002 (CO (02) 4).
Conclusion on effect of CCA
[56] This Court has already, in another context, concluded that s 4 of the CCA was not designed to create a significant change from the position under the GA – see White v Northumberland [2006] NZFLR 1105 at [51]. In that case the Court said that it did not accept that s 4(1) of the CCA constitutes a significant shift in the law and expressed the view that s 4 is essentially to the same effect as s 23(1) of the GA. See also Qiong at [73].
[57] I see no reason to depart from that conclusion. If a significant change had been intended I would have expected it to have been heralded in the course of the legislative history and achieved by something more than the very subtle wording changes pointed to by the appellants. This conclusion is supported by the comment made in reference to the s 4 paramountcy provision in the explanatory note to the Care of Children Bill that the “clause re-enacts, with minor modifications, the
principle stated in section 23(1) of the Guardianship Act” – see Care of Children Bill, no. 54-1, Commentary, p 5. Sections 12 and 148 of the CCA do not affect this conclusion.
[58] Although I am interpreting a New Zealand statute, it is salient to note that my interpretation of the CCA is not out of line with cases in comparable jurisdictions, which have held that family law mechanisms and considerations are not directly imported into the immigration context – see Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at [53] – [54] per Gleeson CJ and McHugh J (although a jurisdictional approach was taken by Gummow, Hayne and Heydon JJ); KN v SD (2003) 176 FLR 73 at [77] (FC); In re Mohamed Arif (An infant) [1968] Ch 643 at 661 and 662 (CA); Re A (A Minor) (Wardship: Immigration) [1992] 1 FLR 427 (CA) and R v Secretary of State for Home Department; Ex parte T [1995] 3 FCR 1 (CA).
IS THERE OTHERWISE A CHANGED STANDARD?
[59] The appellants’ second major argument is that, even if the CCA does not directly apply in the immigration context, the “first and paramount” standard should nevertheless be used as this is the standard which properly reflects the general domestic law standard and New Zealand’s obligations under the United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3 (UNCROC).
Appellants’ submissions
[60] The appellants’ argument under this head has four strands. First, they point out that not only does the first and paramount standard appear in the CCA, it also occurs in other statutes, such as the CYPFA and the Children’s Commissioner Act
2003. The Children’s Commissioner Act does not exclude immigration matters from the Commissioner’s ambit. The appellants also refer to major Governmental public policy statements, including Ministry of Social Development New Zealand’s Agenda for Children: Making life better for children (June 2002) < (last accessed 17 July 2008), as well as common law principles embodied in the parens patriae jurisdiction. The appellants do not directly invoke the parens patriae
jurisdiction. They refer to it merely to demonstrate that the first and paramount standard is not purely statutory in origin but is an important and long standing common law principle.
[61] Secondly, the appellants argue that the Puli’uvea test, which requires a child’s best interests to be a primary (but not paramount) consideration, is no longer (if it ever was) consistent with an interpretation made in good faith in accordance with the ordinary meaning of the provisions of UNCROC considered in their context and in light of UNCROC’s objective purpose, as required by art 31.1 of the Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331 (Vienna Convention). In the appellants’ submission, Puli’uvea represents a literal (if not legalistic) reading of art 3(1) of UNCROC at odds with the emphasis on the centrality of a child’s best interests in UNCROC. Further, the interpretation does not accord with Principle 2 of the Declaration of the Rights of the Child proclaimed by the UN General Assembly Resolution 1386 (XIV) (20 November 1959) which uses the first and paramount standard.
[62] Thirdly, the appellants submit that art 41 of UNCROC, although worded as a “savings” clause, can (and should properly) be interpreted as imposing an obligation on States to accord to children within their jurisdiction all those provisions of the domestic law which are conducive to the realisation of the rights of the child (such as in this case the first and paramount standard).
[63] Finally, the appellants rely on a number of general comments from the United
Nations Committee on the Rights of the Child (CRC Committee).
Changed standard in domestic law
[64] It is true, as I have stated above at [20], that the paramountcy standard is now applied to all decisions where children’s welfare and interests are directly engaged. There has also, as accepted by the Crown, been a growing recognition of children’s autonomy in law and policy. However, Parliament has not seen fit to import those concepts directly into other spheres and more particularly they have not been incorporated into the Immigration Act or into immigration policy. Nor, as I have
discussed at [23] - [24], was the opportunity taken at the time of the introduction of the CCA to provide explicitly that the CCA directly affects legislation in other fields where children’s interests may be engaged, either directly or indirectly. This argument therefore cannot aid the appellants.
Alleged misinterpretation of the international standard
[65] The appellants’ contend that Puli’uvea misinterpreted the applicable international law standard. The starting point for assessing this submission is art 3(1) of UNCROC, which provides that in all actions concerning children, whether undertaken by public or social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a “primary consideration”.
[66] Far from being an interpretation which does not accord with international law, the Puli’uvea interpretation of art 3(1) accords with the plain words of UNCROC (“a primary consideration”). The context also supports the Puli’uvea interpretation. The “paramount consideration” standard appears in another article in the Convention in the context of adoption – art 21. This suggests that the use of the “primary” consideration standard in art 3(1) was deliberate.
[67] This becomes quite clear when the Travaux Préparatoires are taken into account. Travaux can be used as an interpretive aid to determine meaning of provisions in Treaties – see art 32 of the Vienna Convention and the discussion in Zaoui v Attorney-General (No 2) [2005] 1 NZLR 690 at [130] (CA) per Glazebrook J. The basic working text as adopted by the UNCROC Working Group in 1980 framed the best interests of the child as a “paramount consideration” in accordance with Principle 2 of the Declaration of the Rights of the Child – see Detrick The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires” (1992) at 131. At the 1981 session of the Working Group the words “a primary” were substituted for the words “the paramount”.
[68] In 1989 the UNCROC Working Group considered a proposal to amend the draft article to provide that the children’s best interests would be “the primary
consideration” rather than “a primary consideration”. This suggestion was not adopted. The Working Group concluded that there were situations where the competing interests of justice and society at large would be of at least equal, if not greater, importance than the interests of the child – see Detrick at 137 and Fortin Children’s Rights and the Developing Law (2ed 2003) at 38.
[69] The appellants, in support of their argument, refer to art 9 of UNCROC which requires States to ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. However, art 9(4) expressly contemplates separation that may result from “detention, imprisonment, exile, deportation”.
[70] Furthermore, as was set out at [141] of Baragwanath J’s judgment, the Chairman of the UNCROC Working Group made it clear that art 9 was intended to apply to domestic disputes and not to immigration matters. Article 10 was intended to apply to separations involving different countries and relating to cases of family reunification. Article 10 does not, however, recognise the rights of parents and children to enter any country they wish and is not intended to affect the general right of States to establish and regulate their respective immigration laws in accordance with their international obligations – see Detrick at 181.
[71] The Vienna Convention also permits supplementary means of interpretation to be used under art 32 such as decisions from other jurisdictions. In this regard, it is relevant that the Puli’uvea interpretation of the standard in UNCROC aligns with that in comparable jurisdictions. For example, the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 held that the decision-maker must consider children’s best interests as an important factor and give them substantial weight. However, the Supreme Court recognised that this did not mean that a child’s best interests must always outweigh other considerations or that there will not be other reasons for denying a humanitarian and compassionate claim in the immigration context even when children’s interests are given this consideration – see at [75] per L’Heureux-Dubé J for the majority (with Iacobucci
and Cory JJ largely concurring). See also Canadian Foundation for Children, Youth, and the Law v Canada (Attorney-General) [2004] 1 SCR 76 at [10].
Significance of art 41 of UNCROC
[72] The appellants’ next argument is that art 41 of UNCROC requires States to accord to children within the jurisdiction the benefit of the highest standards of protection provided under domestic law, in this case the paramountcy standard.
[73] Article 41, both in its wording and its policy, merely provides that UNCROC does not dilute domestic law if domestic law is more favourable. It does not mandate any changes to domestic law to incorporate a higher standard of protection in all areas merely because that higher standard is applicable domestically in some situations. It is merely designed to ensure that UNCROC does not result in derogation from existing human rights obligations undertaken by the state parties – see Detrick at 522. It does not mandate a uniform standard across all areas of domestic legislation or policy.
CRC Committee’s general comments
[74] Finally, the appellants rely on three general comments by the CRC Committee as showing a strengthened commitment and changing standard at international law – see General Comments 5, 6 and 7.
[75] They rely in particular on General Comment No 5 – see CRC Committee “General Comment No 5: General measures of implementation for the Convention on the Rights of the Child (arts 4, 42, and 44(6))” (3 October 2003) CRC/GC/2003/5. At [37] of this General Comment, States are urged to ensure effective implementation and to ensure respect for all the Convention’s principles and standards for all children within the State jurisdiction.
[76] In my view, General Comment No 5 does no more than encourage governments to implement UNCROC, and in particular emphasises the art 3
requirement that the welfare and best interests of children should form a primary consideration across all areas of governmental activity. The CRC Committee does, of course, encourage State parties to incorporate higher standards of protection, although there is no such obligation to do so – see at [23] of the General Comment.
[77] The appellants also refer to General Comment No 6 – CRC Committee “General Comment No 6: Treatment of unaccompanied and separated children outside their country of origin” (1 September 2005) CRC/GC/2005/6. This, however, relates to unaccompanied and separated children outside their country of origin. It is not intended to be of general application. General Comment No 7, relating to the implementation of rights in early childhood, is not specifically relevant as it is primarily focused on specific features of early childhood and the impact that has on the realisation of rights – see CRC Committee “General Comment No 7: Implementing child rights in early childhood” (20 September 2006) CRC/C/GC/7Rev.1.
[78] None of these General Comments support the view that there is a changed standard at international law.
Conclusion on changed standard argument
[79] None of the arguments put forward for a changed standard in domestic or international law change the conclusion that the first and paramount standard does not apply in the immigration context.
What is the proper application of the Puli’uvea test?
[80] I have rejected the appellants’ contention that the paramountcy standard in the CCA applies directly in the immigration context. I have also rejected the submission that the Puli’uvea test no longer accords with the proper standard under domestic and international law. How the Puli’uvea test should be applied remains at issue.
The contentions of the parties
[81] The Crown, while accepting that the best interests of any children must be taken into account in any immigration decision, submits that this is merely a process requirement and that the weight to be accorded to that factor is a matter for the decision-maker.
[82] The appellants submit that the approach should be a child-centred one, focussed on the effects on the child and the child’s best interests. In the appellants’ submission, the requirement is a substantive one and not merely a question of process.
[83] The appellants submit further that Baragwanath J’s suggestion that the test should be linked to the exceptional circumstances test in s 47(3) of the Immigration Act should be rejected – see at [262] of his judgment. They submit that neither the s 54 discretionary power to make a removal order nor the s 58 power to cancel it are trammelled by reference to the s 47(3) test.
How should the best interests of the child be taken into account?
[84] Although international instruments are not directly incorporated into domestic law it is assumed, as a matter of statutory interpretation, that insofar as their wording allows, statutes should be read in a way which is consistent with New Zealand’s international law obligations. See New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 at 289 (CA), Burrows Statute Law in New Zealand (3ed 2003) at 341 – 342, and Dunworth “Public International Law” [2000] NZ Law Review 217 at 224 - 225.
[85] Many of the international human rights obligations are in any event enshrined in BORA and all legislation must be read consistently with BORA if possible (s 6) – see Professor Taggart “Proportionality, deference, Wednesbury” in Judicial Review (New Zealand Law Society Intensive, September 2007) at 35. In addition, BORA did not abrogate existing rights (s 28). Section 2 of BORA also states that the rights in BORA are affirmed which suggests that they must have pre-existed. Statutes
must also be interpreted consistently with common law principles and values – see
Burrows at 219.
[86] Geiringer, in her excellent article “Tavita and All That: Confronting the
Confusion Surrounding Unincorporated Treaties and Administrative Law” (2004) 21
NZULR 66 at 85 – 86, has argued that the courts, in interpreting the Immigration Act, have used the presumption that Parliament did not intend to legislate in a manner that is contrary to international obligations in a different manner from in other contexts. In her view, in the immigration context, the courts have used the approach of requiring New Zealand’s obligations under UNCROC to be a mandatory relevant consideration in decision-making under the Immigration Act. They have not used the more usual outcome-focused model where consistency with the international obligation must be achieved.
[87] It seems to me, however, that the distinction drawn by Geiringer is not, despite the terminology used, in fact what the courts have generally done. Article 3(1) of UNCROC requires the best interests of the child to be taken into account as a primary consideration. This means that the courts, in using the approach of requiring the best interests of the child to be taken into account in immigration decision-making along with other relevant factors, have in fact been directly applying UNCROC. This is not to say, however, that the normal administrative law concept of mandatory relevant consideration (where weight will be a matter for the decision-maker) is the same as the art 3(1) requirement that, in all actions concerning children, the best interests of the child shall be a primary consideration.
[88] Under the UNCROC standard, weight is built in (a primary consideration). Using the normal presumption of consistency with international law, weight is therefore not a matter left to the decision-maker’s discretion. This means that I reject the Crown submission that art 3(1) is process-oriented and that weight is a matter for the decision-maker. As a matter of law, the statute must be interpreted consistently with the substantive requirement to take the best interests of the child into account as a primary consideration.
[89] Direct application may be justified as it is possible that the UNCROC standard constitutes customary international law – see Alston “A Guide to Some Legal Aspects Connected to the Ratification and Implementation of the Convention on the Rights of the Child” (1994) 20 Commw L Bull 1110 at 1115 and Hathaway The Rights of Refugees Under International Law (2005) at 33 footnote 60. UNCROC is the most universally ratified of all human rights charters, ratified by all but two countries in the world (United States and Somalia) within the first ten years of its existence – see Office of the High Commissioner for Human Rights
< (last accessed 17 July 2008) for the status of ratification. If the UNCROC standard does constitute customary international law, then it is directly applicable in New Zealand, unless abrogated by statute – see Joseph Constitutional and Administrative Law in New Zealand (3ed 2007) at [1.6.4] and Dunworth “Hidden Anxieties: Customary International Law in New Zealand” (2004)
2 NZJPIL 67.
[90] Even if I am wrong in my conclusion that weight is built into the standard, however, it is clear that a decision-maker must give genuine, and not merely token or superficial regard, to mandatory considerations – see New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 552 (CA) per Cooke P, applied in the immigration context by Randerson J in Kumar v Minister of Immigration HC AK M184/99 25 March 1999.
Should the test be linked to s 47(3) of the Immigration Act?
[91] The next issue is whether the revision of the Puli’uvea test suggested by Baragwanath J should be adopted. Section 47(3) provides that an appeal may be brought to the RRA on 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 it would not be contrary to the public interest to allow the person to remain in New Zealand. The requirements of this test have been considered in Patel v Removal Review Authority [2000] NZAR 200 (CA), Ronberg v Chief Executive of Department of Labour [1995] NZAR 509 (HC) and Sale v Removal Review Authority HC AK M1471/93 26 October 1993.
[92] The question is whether powers under s 54, which allow for the making of removal orders, and s 58, which confers a power on an immigration officer to cancel a removal order, must comply with the above test.
[93] I accept the appellants’ submission that Parliament has made neither s 54 nor s 58 subject to the s 47(3) test. This means that immigration officers have the power to cancel removal orders and/or give residence permits in circumstances that fall outside s 47(3). This is understandable. For example, there may be other factors that can be legitimately taken into account such as the fact that a person in fact meets residence criteria. It would place an inappropriate restriction on the powers of immigration officers should Baragwanath J’s proposed test be adopted.
What is the relevance of the New Zealand citizenship of any children of a person liable for removal when considering whether to make a removal order or whether to cancel a removal order?
Submissions of the parties
[94] The appellants submit that, as New Zealand citizens, they have to date enjoyed, and have for the future a legal right to enjoy, the overall package of rights, benefits, opportunities and expectations available to them in this country. In their submission, the undoubted benefit to them of continuing to receive the care and protection of their mother (in the case of the Ye children) and their parents (in the case of the Qiu children) in this country is critical to their enjoyment in practice of their birthright as citizens. To assume a child can return later to enjoy residence rights will often be unrealistic. In the appellants’ submission, the fact that ensuring their rights and needs as New Zealand citizens indirectly benefits their overstayer parents is not a reason for denying them the law’s full measure of protection.
[95] The Crown argues that, to the extent that Baragwanath J suggests that the State’s duty to protect its citizens is a legal right that can be applied by a court to any decision affecting a citizen, he is mistaken. The Crown argues that the modern state exercises its duty of protection of citizens through the enactment and enforcement of national laws, through its adherence to international law and through the operation of
diplomatic relations. There is no scope for a stand-alone legal right of citizenship of the kind contemplated. The Crown also submits that preferential treatment for citizen children would amount to discrimination against alien children which breaches the non-discrimination provision in UNCROC (art 2).
[96] The Crown submits further that, even if there is a right to remain in New Zealand, this is not affected by the decision to remove a child’s parents from New Zealand. The decision whether a child accompanies his or her parents or remains in New Zealand is one rightly taken by the parents. It is not a function of State action. The children, as New Zealand citizens, are free to remain and certainly free to return later.
Citizenship rights
[97] It has long been recognised that the right of the State to demand allegiance from its subjects is subject to a reciprocal obligation on the part of the State to protect its subjects – see Holdsworth A History of English Law (3ed 1944) Vol IX at
72 referring to the landmark case Calvin’s Case (1608) 7 Co Rep 1a at 4b; 77 ER
377 at 382 (CP). The application in New Zealand of Calvin’s Case was confirmed by the Privy Council in Lesa v Attorney-General [1982] 1 NZLR 165. Citizenship has been characterised as one mechanism for identifying who holds rights and what those rights are – see Jenson “Introduction: Thinking about Citizenship and Law in an Era of Change” in Law Commission of Canada (ed) Law and Citizenship (2006) 3 at 4; the dissenting judgment of United States Supreme Court Chief Justice Warren in Perez v Brownell, 356 US 44 at 64 (1958), subsequently adopted in Afroyim v Rusk, 387 US 253 at 268 (1967); Yan v Minister of Internal Affairs [1997] 3 NZLR
450 at 456 (HC) (per Hammond J) and Lee v Deportation Review Tribunal [1999] NZAR 481 at 494 (HC) (per Williams J).
[98] This is not to suggest that non-citizens do not enjoy the rights embodied in domestic legislation (including BORA), in the common law and under the international covenants to which New Zealand is a party while they are in New Zealand, even (at least to an extent) if they are in New Zealand unlawfully. As the Crown points out, the CRC Committee has criticised New Zealand for its failure to
withdraw the distinction in health, welfare and education services between children according to the nature of their authority to be in New Zealand – see CRC Committee “Consideration of Reports Submitted by States Parties under Article 44 of the Convention Second Periodic Report of States Parties: New Zealand” (12 March 2003) CRC/C/93/Add.4 at [24](i). The withdrawal of the reservation (under art 22 of UNCROC) on children unlawfully in New Zealand is in fact to take place in 2008 with the introduction of a new Immigration Act – see Appendix 2: Progress on UNCROC Work Programme < (last accessed
17 July 2008).
[99] The one major difference between the rights of citizens and non-citizens, however, is the cardinal and absolute residence right of citizens. This right of residence does not accrue to those who are in New Zealand unlawfully (including overstayer children). That this is the case does not constitute discrimination – see Joseph, Schultz and Castan The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2ed 2004) at [12.09], Office of the High Commissioner for Human Rights “General Comment No 15: The position of aliens under the Covenant” (11 April 1986) at [5] – [6] and Human Rights Committee “General Comment No 27: Freedom of movement (Art 12)” (2 November 1999) CCPR/C/21/Rev.1/Add.9 at [4]. See also Irving “Still Call Australia Home: The Constitution and the Citizen’s Right of Abode” (2008) 30 Syd LR 133.
[100] The right to residence has been seen as the core right from which all other citizenship rights flow – see Weis Nationality and Statelessness in International Law (2ed 1979) at 46 - 47 and 59 and Sawyer “A losing ticket in the lottery of life: expelling British children” [2004] PL 750. In keeping with the affirmation of citizenship as a core right, s 3 of the Immigration Act is emphatic in its protection of the right for New Zealand citizens to remain in New Zealand.
3 Rights of New Zealand citizens protected
(1)For the purposes of this Act, every New Zealand citizen has, by virtue of that citizenship, the right to be in New Zealand at any time.
(2) Nothing in this Act shall abrogate the right declared in subsection (1) of this section, and no provision of this Act that is inconsistent with that right shall apply to New Zealand citizens.
(3)Without limiting the generality of subsection (2) of this section, no New Zealand citizen requires a permit under this Act to be in New Zealand, or to undertake employment in New Zealand or within the exclusive economic zone of New Zealand, or to undertake a course of study or training in New Zealand, and no such citizen is liable under this Act to removal or deportation from New Zealand in any circumstances.
[101] There is no age limit in s 3 of the Immigration Act. The right to remain in New Zealand and to return at any time is also encapsulated in s 18(1) of BORA. Again there is no age limit. See also art 13 of the Universal Declaration of Human Rights UNGA Resolution 217A (III) (10 December 1948) and art 12 of the International Covenant of Civil and Political Rights (1966) 999 UNTS 171 (ICCPR). Thus, the appellants enjoy the right of residence and this necessarily entails a right to enjoy whatever rights and benefits that residence affords them.
Parental decision or State action?
[102] The Crown argues that, where there is removal of a parent, it is the parent’s choice whether the citizen child remains or goes with the parent. The Crown points to ss 16(2)(b) and 28 of the CCA which affirm the right of parents to determine a child’s place of residence until the child turns 18 years old, marries, enters into a civil union or a de facto relationship. The Crown relies on the traditional view expressed in numerous cases that the decision of whether a citizen child will leave the country with their deported parent is purely a parental decision and does not reflect state intervention – see, for example, Elika v Minister of Immigration [1996]
1 NZLR 741 at 749 (HC), Schier v Removal Review Authority [1998] NZAR 230 at
239 (HC) and P v Director-General of CYPS [1998] NZFLR 977 at 989 (HC).
[103] I reject the traditional view (and the Crown argument) on this point as artificial. A parent faced with removal has two options – take his or her citizen children or leave them behind. This “choice” is not a free choice but one required of the parents because of the State’s actions in removing the parent. The “choice” is either to deprive the children of the benefits of their citizenship by removing them from New Zealand or to deprive them of the benefits of growing up with a parent. It is recognised in art 9 of UNCROC (see above at [69]) and in the principles set out in
s 13(b), (c) and (e) of the CYPFA (also echoed in s 5(a), (b) and (d) of the CCA) that generally a child’s welfare and best interests require him or her to be with his or her parents.
[104] It would not usually be seen as a realistic option by parents to leave their children in New Zealand unless at least one parent could stay with them, particularly if there were no other relatives in New Zealand. If it did occur, however, the removal order must be seen as the real and operative cause of the disintegration of the family unit. Equally, if the parents take the child out of New Zealand, this can be seen as a de facto removal of the child by the State. This was the view taken in Al-Hosan v Deportation Review Tribunal HC AK CIV 2006-404-003923 3 May
2007 at [65] where Harrison J labelled the arguments based on the “choice” of the parents as artificial and disingenuous.
[105] Similarly Lord Brown of Eaton-under-Heywood (delivering the majority judgment) and Baroness Hale of Richmond in Naidike v Attorney-General of Trinidad and Tobago [2005] 1 AC 538 (PC) recognised that children whose parents are deported are often effectively forced to leave – see at [63] and [75]. The majority of the High Court of Australia in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 also saw action “concerning children” covered by art 3 of UNCROC as extending to the proposed deportation of a foreign national parent of Australian citizen children – see at 289 per Mason CJ and Deane J and at 302 per Toohey J.
[106] The reliance placed by the Crown on the passage in the judgment of the High Court in Schier v Removal Review Authority [1998] NZAR 230 is misplaced – see above at [102]. I accept the appellants’ submission that that passage has to be read in light of the facts. In that case there was no suggestion or evidence of any unjust or unduly harsh consequences that would flow from the children in question returning to Germany with their German parents. I also note that, while this Court in Schier v Removal Review Authority [1999] 1 NZLR 703 at 712 did not call into question the decision of the High Court, it did take a more sensitive stance on citizen children faced with possible de facto removal. It held that the degree of likelihood that other family members, especially New Zealand citizens, would in practical terms have to
leave New Zealand was a relevant consideration in any appeal against a removal order.
[107] In any event, despite the Crown’s assertion before us that it is the parents’ choice whether to take their children or leave them behind, Ms Ding at least came under a measure of pressure to take the children to China with her. For example, in a report on the removal action against Ms Ding prepared by Mr Maritz, an immigration officer Service Leader, on 23 August 2005, it was noted that “[f]urther attempts will be made to try and convince her to take her children with her”. Similarly, in a report of 24 August 2005 Mr Zhou, the immigration officer in charge of Ms Ding’s case, said that the Immigration Service was continually trying to convince the client to take her children back to China with her. This illustrates the effective lack of free choice on the parents’ behalf that may exist.
Postponement of citizenship rights
[108] The argument has been posited in other jurisdictions that any de facto deportation or removal is merely a postponement of any citizenship rights and not a bar to their exercise – discussed by Mullally in “Citizenship and family life in Ireland asking the question ‘Who belongs?’” (2005) 25 Legal Stud 578 at 579. However, since the enjoyment of rights such as welfare, health care and education in New Zealand are dependent on the citizen remaining in this country, even a temporary removal from New Zealand can inflict harm which cannot be remedied by the citizen child returning later to New Zealand (even assuming that the child will be able to afford to do so).
[109] Rights, such as the right to education and welfare, are designed to enable a child to take up their position as an autonomous adult and responsible citizen – see Herring “Children’s Rights for Grown-ups” in Fredman and Spencer (eds) Age as an Equality Issue: Legal and Policy Perspectives (2003) 145 at 161. The “deferral” of these rights can be seen both as a loss for the child but also potentially for New Zealand. See also the remarks of Smither J in Kaufusi v Minister for Immigration and Ethnic Affairs (1985) 70 ALR 476 at 482 – 483 (FCA) and those of Murphy J Pochi v Macphee (1982) 151 CLR 101 at [11]. I note, however, that the view
expressed by Smither J does not necessarily represent the law in Australia – see Kioa v West (1985) 159 CLR 550, although there was no express mention (and therefore no express disapproval) of Kaufusi in that case. See also the discussion at [273] below.
Relevance of citizenship
[110] The fundamental importance of citizenship rights and the fact that removal of the parents can mean de facto removal of citizen children points to the need for a child’s New Zealand citizenship to be taken into account as a separate factor in any decision relating to the removal of his or her parents.
[111] This view is supported by Baroness Hale’s comments in Naidike at [73]. In that case, the issue was whether a work permit renewal ought to have been granted to Dr Naidike to enable him to continue working in Trinidad. Baroness Hale held that, although the protection of the citizen child did not lead to the conclusion that no foreign parent of a citizen child could ever be deported, it was an important part of the decision and, in Dr Naidike’s case, had not been properly considered. This conclusion was partly based on the right to respect for family life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 UNTS 221 (ECHR). But it is clear that Baroness Hale saw citizenship as significant in its own right, given the reference (at [73]) to the comment of Gaudron J in Teoh where she said that the State owes particular obligations due to the special vulnerability of the child citizen. Lord Brown, who delivered the main judgment in Naidike, considered it unnecessary to deal with this aspect as the majority had held that the deportation order of the father was unlawful on other grounds – see at [63].
[112] The need to consider a child’s citizenship rights where his or her parent(s) are liable for removal or deportation (although not creating an absolute right to have parents remain) was also acknowledged in Qiong at [92] and Al-Hosan at [54]. See also Wolf v Minister of Immigration [2004] NZAR 414 at [65] and [72] (HC).
[113] It is significant that in Europe a citizen child’s rights have been extended, in some circumstances, to a right to have a parent reside with them in their country of residence. I refer to Case C-200/02 Chen v Secretary of State for the Home Department [2005] QB 325 (ECJ). Chen is, of course, not directly applicable in New Zealand. To hold that citizenship confers rights to have the parents remain would be contrary to authority. The case does, however, show the importance with which citizenship has been regarded in Europe and lends support to the view that a child’s citizenship should be treated as an important factor in the New Zealand context to be independently weighed in immigration decisions affecting their parents.
[114] Underlying the Crown argument appears to be a concern that the floodgates will be opened if a child’s citizenship is to be taken into account as a separate consideration. Such concerns have been diminished by an amendment to the Immigration Act by s 16 of the Citizenship Amendment Act 2005. Under s 4A of the Immigration Act, a person is a New Zealand citizen by birth (as against descent) only if the person was born in New Zealand on or after 1 January 1949 and before
1 January 2006. This represents a change from a lex soli based citizenship to a lex sanguinis based citizenship.
[115] This change in policy means that the numbers of children for whom this question of de facto removal will arise has been limited as at 1 January 2006, although it will continue to be an issue where one parent is an overstayer and one is a New Zealand citizen.
What are the factors to be weighed against the New Zealand citizenship and the welfare and best interests of any child of a person subject to removal?
Right to exclude or expel non-citizens
[116] There is consensus at international law and in discussions of international law in domestic contexts that the right to control borders is a fundamental incident of the sovereignty of a state. Within the limits of its borders, a state is said to have
“exclusive territorial control” (Corfu Channel Case (Merits) [1949] ICJ Rep 4 at 18) and on crossing a state’s border, all individuals and property fall under the territorial authority of that state – see Jennings and Watts (eds) Oppenheim’s International Law Vol 1 Peace (9ed 1992) at 384.
[117] The consequence of this is that the State has the right to exclude or expel non-citizens. This is one of the earliest and most widely recognised powers of the sovereign state – see, for example, R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Commissioner for Refugees Intervening) [2005] 2 AC 1 at [11] (HL) per Lord Bingham of Cornhill; Attorney- General for the Dominion of Canada v Cain [1906] AC 542 at 546 (PC); R (Ullah) v Special Adjudicator [2004] 2 AC 323 at [6], [30] and [63] (HL); Fong Yue Ting v United States, 149 US 698 at 707 (1893); Pochi at [5] and at [13] per Gibbs CJ (with Mason and Wilson JJ concurring); and, in the New Zealand context, Attorney- General v E [2000] 3 NZLR 257 at [1] (CA).
Limits on this right
[118] The power to exclude or expel aliens is subject to limitations imposed both by international law itself and by New Zealand domestic law. These limitations either prohibit the exclusion or expulsion of certain categories of aliens, or circumscribe the circumstances in which the power of exclusion or expulsion can lawfully be exercised for example, where the person qualifies as a refugee – see s 129X of the Immigration Act and Attorney-General v E.
[119] It was also confirmed by the Supreme Court in Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289 that, even where an individual poses a threat to natural security, the Minister of Immigration may not order the deportation of the individual if he or she is satisfied that there are substantial grounds for believing that, as a result of deportation, the person would be in danger of being arbitrarily deprived of life, or being subject to torture or to cruel, inhuman or degrading punishment – see at [93]. The recent European Court of Human Rights judgment has affirmed the absolute nature of the ban on torture or inhuman treatment under art 3 of the ECHR – see Saadi v Italy (Application No 37201/06 Council of Europe; European Court of
Human Rights, 28 February 2008). See also Asia Pacific Forum of National Human Rights Institutions Advisory Council of Jurists Reference on Torture Final Report (2005) < (last accessed 17 July 2008).
[522] Secondly, the challenge to the RSAA’s decision has been finally disposed of. Ms Ding has not suffered Convention discrimination. She is not a refugee. Similarly, it is definitively established that Mr and Mrs Qiu are not refugees.
[523] Thirdly, various Ministers of Immigration have considered Ms Ding’s case under s 130 on no fewer than six occasions. None of those decisions is challenged. The ministers considered exactly the same humanitarian arguments which were presented to us. The sixth ministerial consideration was just months before Mr Zhou determined to make his (second) removal order.
[524] Likewise, the Minister of Immigration has considered the Qius’ case under s 130 on two occasions. Neither of those decisions is challenged. In both applications to the minister, the Qius had strongly relied on the fact they had a New Zealand-born son.
The Ding removal order
[525] Mr Zhou made the Ding removal order on being satisfied that s 53(1) applied to Ms Ding. Dr Harrison does not dispute that s 53(1) applied to her. On our view of the case, there is nothing further to be said on this topic. There is no authority supporting the contention that a s 54 decision-maker under the period 3 regime need consider anything further.
[526] We stress that this does not mean humanitarian considerations go unconsidered. We have italicised that sentence as it seems to us our colleagues insinuate that our approach leads to a regime where humanitarian considerations are unimportant. Nothing could be further from the truth. Humanitarian considerations do get taken into account – and not just once. First, one can in general terms assume Government immigration policy is broadly consistent with our international obligations and we know it includes a humanitarian residence policy. Secondly, in so far as discretionary decisions are taken under Government immigration policy, one can assume such discretions will be exercised taking into account humanitarian considerations. Thirdly, if the humanitarian considerations fall within the Refugee Convention (as many do), then the person may remain in New Zealand as a refugee. Fourthly, the overstayer can avail himself or herself of an appeal to the RRA on humanitarian grounds, with further appeals possible to the High Court and this court.
[527] Those are the appropriate occasions on which humanitarian considerations are taken into account. It is not the task of the s 54 decision-maker to evaluate yet again those considerations. Nothing could be further from the statutory purpose of the 1999 amendment. Indeed, in this case, the humanitarian considerations, on which Glazebrook J places so much weight, were pressed by Ms Ding on no fewer than five occasions in various forums.
[528] The challenge to the Ding removal order must fail.
The s 58 decision
[529] After making the removal order, it is true that Mr Zhou did complete a humanitarian questionnaire and then, in his words, “decided to proceed with [Ms Ding’s] removal from New Zealand”. Ms Ding’s lawyers have categorised that decision as a decision under s 58. We are not at all sure it was a decision under that section. Rather, the evaluation appears to have been undertaken pursuant to a provision in the departmental manual.
[530] The provenance of the manual is unclear. Only “relevant pages” of the manual were before the High Court, and, according to the index of our case on appeal, those pages came in as part of an “agreed bundle of documents”. According to Baragwanath J, the pages with which we are concerned were “prepared as a response to the decision of the Court of Appeal in Tavita and amended following Puli’uvea”: at [189]. (To remind, Tavita was decided at the end of 1993 and Puli’uvea in 1996.) If that is right, then it would seem the manual was prepared during the period 2 regime.
[531] What is clear is that the manual is mere “NZIS operational policy and does not constitute Government immigration policy as described in section 13A(1) of the Immigration Act 1987”: it specifically so states.
[532] It appears Mr Zhou undertook the humanitarian questionnaire pursuant to D4.45.5 of the manual. (We observe that this is the section which Dr Harrison submitted was unlawful on the basis that it had not been updated to take into account the effect of the passing of the CCA in 2004.) D4.45.5 of the manual reads as follows:
(a) When determining whether or not to execute a removal order it is necessary for the immigration officer to take into account the particulars of the case and the impact removal might have on the rights of:
i the person being removed; and
ii any immediate family associated with that person, (particularly those who are New Zealand citizens or residents).
(b) The immigration officer must then balance the factors set out in
(a) above against:
i the rights and interests of the State in determining who should reside within its borders;
ii the principal goals of Government residence policy;
iii the intention of the Immigration Act 1987 to ensure a high level of compliance with immigration laws;
iv the need to be fair to other potential immigrants who have not met policy requirements and who have not been able to remain in New Zealand.
[533] In another part of the manual, it is said that “these obligations can be considered at any point during the removal process, depending on the circumstances, but should be considered at the earliest opportunity and must be prior to the actual removal”.
[534] It seems likely that D4.45.5 was drafted during the period 2 regime. At that time, as we have explained, immigration officers made removal orders prior to humanitarian appeals to the RRA. In those circumstances, as we have explained at [446] above, it was sensible for immigration officers to make sure there were no humanitarian considerations which might justify the overstayers remaining in New Zealand. To do otherwise would simply lead to unnecessary appeals to the RRA, as we explained. But that is not the legislative framework currently applicable. It may be through oversight that the manual has not been updated to reflect the 1999 amendment.
[535] The other possibility, of course, is that the manual drafter did turn his or her mind to D4.45.5 following the 1999 amendment and concluded it was still applicable to the new statutory scheme. If that is what happened, then, in our respectful view, the manual updater erred. The updater failed to assess the full implications of the change.
[536] The first explanation is on balance more likely to be correct. If there had been a conscious updating following the 1999 amendment, it is almost inconceivable
that D4.45 as a whole could make no reference to decisions of the RRA. If there has been a s 47 appeal, then in the normal case the RRA’s adverse decision will have immediately preceded the removal action with which D4.45 is concerned. The manual says nothing about the weighting to be given to any RRA decision, still less the propriety of an immigration officer purporting to consider humanitarian criteria when such may just have been pronounced upon by the RRA, the High Court, or this court. That glaring omission makes us think it more likely this section of the manual is a carry-over, which is no longer applicable to the new regime.
[537] We note in passing that, since 2003, the chief executive of the Department of Labour has had power to give, from time to time, “general instructions to visa officers and immigration officers”: s 13BA(2). We do not know whether the manual is included within the expression “general instructions”: we had no submissions on this. Two subsections of s 13BA are interesting, however. We set them out:
(6)Nothing in this Act, or in any other law or enactment, requires a visa officer or an immigration officer to process an application for a visa or permit in any particular order or manner, whether or not consistent with any general instructions given by the chief executive from time to time.
(7)The question whether or not an application is processed in an order and manner consistent with any general instructions given by the chief executive from time to time is a matter for the discretion of a visa officer or immigration officer, and –
(a) no appeal lies against the decision of the officer concerned, whether to an Authority, the Board, the Tribunal, the Minister, any court, or otherwise; and
(b) no review proceedings may be brought in any court in respect of
–
(i) any general instructions as to the order and manner of processing applications as given by the chief executive from time to time; or
(ii) the application of any such general instructions; or
(iii) any failure by the Minister or a visa officer or immigration officer to process or to continue to process an application for a visa or a permit; or
(iv) any decision by the Minister or a visa officer or immigration officer to process (including a decision to continue to process), or any decision no tot process (including a
decision not t continue to process), an application for a visa or permit.
[538] In the absence of submissions on this topic, we do nothing more than note those provisions.
[539] Dr Harrison challenged D4.45.5 on the basis that it failed to mention the
CCA. We agree that D4.45.5 is wrong, but for a rather different reason.
[540] It was, of course, perfectly understandable that Mr Zhou should comply with the departmental manual. But the fact he did undertake a humanitarian questionnaire cannot now confer rights on Ms Ding which the statute did not. She has had the benefit of a fresh look to which she was not entitled. Any errors in reasoning in this non-statutory fresh look cannot be the subject of judicial review.
[541] Even if Mr Zhou’s enquiry was undertaken not pursuant to the manual but rather under s 58, it could not be reviewed. The section, as we have said, is purely empowering; it confers no rights or expectations. The no rights clause makes that crystal clear.
[542] In our view, the evaluation Mr Zhou carried out did not involve the exercise of a statutory power; nor did he make a decision as such.
[543] Having said that, it was a very good idea for him to discuss removal with Ms Ding. He had to find out what she planned to do with her New Zealand-born children. If she intended to leave them here, then he would want to be sure that they were going to be properly looked after. If they were not, then the appropriate State agencies would have to become involved.
[544] It was also perhaps appropriate for Mr Zhou just to check that there had been no significant change of circumstances since the minister had last considered the matter in March that year. There were none. Indeed, the humanitarian considerations which Dr Harrison and Mr Bassett pressed on us are, save in one respect, the same considerations as have been considered and pronounced upon by the RSAA and the ministers. The one new aspect – the relevance of the CCA – is an
argument that this court unanimously rejects: for our view on that, see below at
[547].
The Qiu removal orders
[545] There is no dispute that Messrs Zhou and Wang, who made the Qiu removal orders, were satisfied that s 53(1) applied to Mr and Mrs Qiu and that they were correct to be so satisfied. That means the Qiu appeal must also fail.
Our view on some of the issues considered by Glazebrook J
[546] For the reasons already given, we have held that the Ding removal order, the s 58 decision, and the Qiu removal orders were not reviewable in the circumstances. That disposes of both appeals. But there are some topics on which Glazebrook J has expressed an opinion on which we too wish to comment.
Care of Children Act 2004
[547] Glazebrook J has held that the CCA did not effect “a significant shift in the law” in so far as immigration matters are concerned: at [56] - [57]. We agree, for the reasons Glazebrook J gives. (We do not pretend, however, to have read all the authorities and articles referred to, many of which were not cited to us.) When we say we agree the CCA did not effect “a significant shift in the law”, we are, however, referring to the CCA’s effect (or non-effect) at a different stage of the immigration process. The rights of children fall to be considered at the level of departmental policy-making, the exercise of humanitarian discretions when considering applications for permits and residency, on s 47 appeals, and on applications to the minister under s 130. They do not fall to be considered when the service is moving to remove the overstayer, the s 53(1) criteria having been satisfied.
Tavita v Minister of Immigration
[548] We want to say a word about Tavita, on which Dr Harrison strongly relied. It is important to recognise, as we have said, that Tavita was decided under the period
1 statutory regime. Viliamu Tavita, a Western Samoan overstayer, had appealed to the Minister of Immigration under s 63. (Note there is an error in the NZLR report at
259, line 27: it refers to the appeal being under s 63B. That is an editorial error. The signed judgment, which we have checked, refers accurately to s 63, as does the NZLR headnote at 257, line 40.) A s 63 appeal incorporated the humanitarian criteria: see above at [434]. The minister had declined Mr Tavita’s appeal. The point of the case was whether the minister, when considering the humanitarian criteria, was required to take into account New Zealand’s obligations under relevant international instruments, such as the International Covenant on Civil and Political Rights 1966 and the Convention on the Rights of the Child 1989. The minister, when making his decision, admitted he had not taken those international instruments into account: at 261. As this court said, “the essential argument for the Crown” was that the minister was not obliged to do so: at 261.
[549] This court rejected the Crown’s contention. In the end, the court delivered no more than an “interim judgment” just before the conclusion of the 1993 court year. The appeal was adjourned for both sides to consider their positions carefully. But with respect to the Crown’s argument, this court said at 266:
[The Crown’s contention] is an unattractive argument, apparently implying that New Zealand’s adherence to the international instruments has been at least partly window-dressing. Although, for the reasons to be mentioned shortly, a final decision on the argument is neither necessary nor desirable, there must at least be hesitation about accepting it. The law as to the bearing on domestic law of international human rights and instruments declaring them is undergoing evolution.
…
It is not now appropriate to discuss how far [R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696], in some respects a controversial decision, might be followed in New Zealand on the question whether, when an Act is silent as to relevant considerations, international obligations are required to be taken into account as such.
If and when the matter does fall for decision, an aspect to be borne in mind may be one urged by counsel for the appellant: that since New Zealand’s
accession to the Optional Protocol the United Nations Human Rights Committee is in a sense part of this country’s judicial structure, in that individuals subject to New Zealand jurisdiction have direct rights of recourse to it. A failure to give practical effect to international instruments to which New Zealand is a party may attract criticism. Legitimate criticism could extend to the New Zealand Courts if they were to accept the argument that, because a domestic statute giving discretionary powers in general terms does not mention international human rights norms or obligations, the executive is necessarily free to ignore them.
[550] We have no difficulty with any part of that. Relevant international instruments should be considered by the RRA on a s 47 appeal, the current equivalent of the ministerial appeal under consideration in Tavita: the Crown does not dispute that. Further, it is noteworthy that both the RSAA and the ministers expressly referred to New Zealand’s international obligations when considering Ms Ding’s and Mr Ye’s cases. They were right so to do. But Tavita is not authority for the proposition those obligations must again be taken into account when an immigration officer is determining to effect a removal.
[551] Nothing in our opinion is inconsistent with Tavita. The implications of Tavita have been taken on board by both Parliament and the Immigration Service. What Parliament has done, by the 1999 amendment, is bring forward the humanitarian considerations so that, in the interests of streamlining the process, they are considered before the removal process gets underway, not as part of it.
[552] Glazebrook J suggests that our interpretation means that the 1999 amendment has overruled Tavita and Puli’uvea: at [203]. That is not the case. Both decisions remain good law. The difference between us is as to the correct point at which humanitarian considerations are taken into account.
Puli’uvea v Removal Review Authority
[553] We next want to comment on Puli’uvea. As we have said, this decision was concerned with the period 2 regime. An order for Mrs Puli’uvea’s removal was served on her on 18 May 1992. She appealed to the RRA on humanitarian grounds. That is to say, it was a s 63B appeal: see above at [445]. The RRA dismissed the appeal. Mrs Puli’uvea did nothing for some time. When the authorities moved to
carry out the removal order, she brought an application for judicial review. It is not clear why she proceeded by way of judicial review, as there was an appeal right, although the time limit for such an appeal had passed. Probably judicial review was chosen on the basis that Mrs Puli’uvea’s lawyers thought she might not get leave to appeal out of time; as well, she may have wanted to utilise the interim order procedure under s 8 of the Judicature Amendment Act 1972.
[554] The appeal came before the Court of Appeal following Temm J’s refusal to grant interim relief to prevent immigration officials effecting her removal. Mrs Puli’uvea’s principal complaint was with respect to the decision of the RRA. She complained that it had failed properly to apply the humanitarian criteria. In particular, she complained that the RRA had not adequately taken into account that her removal from New Zealand would result in her separation from her three New Zealand-born children. The case is, therefore, very similar on the facts, and, of course, a s 63B appeal is the equivalent of a s 47 appeal under the current legislation.
[555] This court held that the matter had been properly considered by the RRA and that the application for review had no chance of success on that basis. The court then went on to consider the second complaint Mrs Puli’uvea made, namely that the Immigration Service had “found material facts wrongly” when attempting to effect her removal in February 1995. The court noted, at 519, that “there was some disagreement between the parties about the statutory powers that were in question at this final stage”. The court said:
It is indeed not even clear that any particular exercises of statutory powers of decision occurred in February 1995: the 1992 order was simply to be executed.
[556] In the end, the court did not resolve that question definitively, because it was satisfied that, whether the immigration officers concerned were required to consider the matter afresh or not, they had had regard to “the position of the children, especially the New Zealand-born children, as a primary consideration”: at 522. The court noted that the officers had “had regard to the impact of [Mr and Mrs Puli’uvea’s] removal on the family and they did it on either hypothesis, that is to say whether the New Zealand-born children remained in New Zealand or returned to Tonga with their parents”: at 522.
[557] One can understand why this court did not feel it had to resolve the legal question of immigration officers’ obligations on a removal: the case was clear on the facts. The court may well not have had the benefit of the detailed submissions on the statutory framework that we received. We have attempted to grapple with the question this court left unanswered in Puli’uvea, and we have concluded that the making of a removal order, especially under the period 3 regime, does not involve a relitigation of whether humanitarian criteria are satisfied.
Linking ss 54 and 58 to s 47(3)
[558] Glazebrook J has, at [83], referred to Baragwanath J’s suggestion that the test under ss 54 and 58 “should be linked to the exceptional circumstances test in s 47(3)”. At [93] she rejects that linkage. She notes “that Parliament has made neither s 54 nor s 58 subject to the s 47(3) test”. She goes on to say:
This means that immigration officers have the power to cancel removal orders and/or give residence permits in circumstances that fall outside s 47(3). This is understandable. For example, there may be other factors that can be legitimately taken into account such as the fact that a person in fact meets residence criteria. It would place an inappropriate restriction on the powers of immigration officers should Baragwanath J’s proposed test be adopted.
[559] It will be apparent, from the discussion above, that we agree with neither Baragwanath J nor Glazebrook J. Section 54 does not import humanitarian considerations at all: there is no linkage whatever between that section and s 47(3). The power conferred under s 58 is also not linked to s 47(3). To that extent, we agree with Glazebrook J. But where we disagree with her is that the removal process requires an immigration officer to consider not only s 47(3)-type considerations but much more besides. The true purpose of s 58, to our mind, is to empower immigration officers to cancel removal orders in circumstances where the Immigration Service or the minister has independently determined that an overstayer’s status should be reconsidered. This power is needed, as otherwise the police would be required to take the person named in the removal order into custody and to proceed to execute the order in accordance with s 59: see s 55(1).
Implying humanitarian criteria into s 54
[560] Glazebrook J, at [215] - [225] of her opinion, develops an attractive thesis that, notwithstanding the absence of any explicit humanitarian test in s 54, Parliament must have intended that such inquiry be made in order that New Zealand’s international obligations are fulfilled. Notwithstanding the customary persuasiveness of Glazebrook J’s reasoning, we are unable to accept that such inquiry can be implied into s 54. In brief, this is for the following reasons.
[561] First, s 54 sets out explicit criteria (cf s 72, which the Supreme Court considered in Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289, to which Glazebrook J refers at [222]). It would be most unusual to draft a statute where certain criteria are explicit but other criteria – more important ones, indeed – are left completely unstated but must be inferred. Even though the explicit criteria are fulfilled, the power to remove does not apparently arise, on Glazebrook J’s reasoning, because of non-fulfilment of the implied criteria.
[562] Secondly, what these implied criteria are is obviously not easy to state. For example, Glazebrook J and Hammond J do not agree on the nature of the test to be implied. Further, the kind of review required seems to hinge on what reviews there have been in the past: at [161]. It is a little difficult to see why Ms Ding should be entitled to a further review when her humanitarian case has already been considered on so many occasions.
[563] Thirdly, it is very difficult to see how this humanitarian review fits in with the humanitarian review mechanism which is explicitly provided, namely the right of appeal to the RRA.
[564] Fourthly, it seems grossly unfair that those who wait patiently overseas seeking permission to immigrate here and those who lawfully depart before their permits expire are much worse off than those who flout our law and remain as illegal overstayers. The latter group get not only a right of appeal to the RRA (about which no one could quibble) but also the right, apparently, to a further humanitarian review under s 54. What is more, the s 54 review is apparently far more wide-ranging than
the appeal to the RRA, particularly if the overstayer has chosen not to exercise his or her rights of appeal.
[565] Fifthly, Glazebrook J’s approach requires implying not just criteria but also an entire process. She is not definitive as to how immigration officers must carry out the “final check” which she says s 54 requires. But it is clearly more favourable to overstayers than the statutory procedure for a s 47 appeal:
(a) On a s 47 appeal, the RRA proceeds “on the papers”: s 50(1).
Although Glazebrook J says the “right to be heard” she has identified is “not a right to be heard orally” (at [164]), it is almost impossible to envisage anything less than an oral hearing being satisfactory, given the nature of the inquiries Her Honour envisages the Immigration Service will need to make, particularly of any children of overstayers, who can scarcely be expected to put their views in writing.
(b)On a s 47 appeal, it is the appellant’s responsibility “to ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are received by the Authority”: s 50(2)(a). Under Glazebrook J’s s 54 hearing, the Immigration Service has an obligation to seek out relevant information.
(c) Under Glazebrook J’s s 54 hearing, the children’s views should have been directly obtained: at [138] - [142]. It is unclear whether children must be heard on a s 47 appeal. (We expressly leave that open.)
[566] We simply cannot accept that s 54 can be read in this way.
[567] At [159] and [160], Glazebrook J suggests that, in circumstances where “there are (reasonable) concerns about flight risk”, the immigration officer may defer the humanitarian consideration from the s 54 phase to “the s 58 stage”. With respect, we consider this to be judicial law-making.
The interests of children
[568] Glazebrook J devotes a large part of her opinion to a discussion of how the welfare and best interests of children should be taken into account. Given the way we see this case, we do not need to comment on that. The matters she raises are, to our mind, not relevant to the removal process itself. They may be relevant to the development of policy within the department, to the work of the RRA, and to ministers exercising discretion under s 130. But that policy is not under review in this case; nor is the RRA or any decision of a Minister of Immigration. This matter is best left to a case where those bodies are before the court, defending relevant decisions. (The Minister of Immigration is a party, of course, to this appeal, but only in his capacity as employer of Messrs Zhou and Wang. He is not before the court defending Government policy or a personal s 130 decision of his own or a predecessor minister.)
Standard of review
[569] Glazebrook J, in her opinion, sets out her view as to the appropriate standard of review: at [303] - [305]. We express no opinion on this topic, as it does not arise.
Our view on some of the issues considered by Hammond and Wilson JJ
[570] We now comment briefly on the reasons prepared by Hammond J, to which Wilson J has subscribed. (For simplicity, we refer to their opinion as Hammond J’s.) The difference between Hammond J and us is not particularly great.
The s 58 task
[571] Hammond J, unlike Glazebrook J, sees this case in terms of s 58 rather than s 54. Even then, he describes the procedure as “tacked on”: at [397]. He acknowledges what we have referred to as the no rights clause: see his reasons at [402]. He appears to accept that, if an immigration officer refuses to consider a purported application under s 58, that refusal would not be reviewable. Clearly that
must be right. But, he says, “once an official decides to take a step under s 58 …, the subsequent decision is then reviewable”. We have difficulty in accepting that conclusion in light of the no rights clause.
[572] Hammond J sees the s 58 task as being a last check and requiring (albeit limited) reconsideration of “a lawful decision which [has] already been made under s 54”: at [402]. For the reasons we have earlier given, we do not accept that is the way in which ss 54 and 58 interrelate. Section 58 is not there as the means of checking a s 54 decision. It would be extremely odd for Parliament to provide that an immigration officer should make a decision to remove, and then reconsider it with a view to cancelling it. Surely, if humanitarian considerations must be taken into account, one would have expected Parliament to write that into the statutory criteria which must be considered before the removal order is made. The function of s 58, as we have explained, is simply to empower immigration officers to cancel removal orders if, independently, the minister, say, or the chief executive or the service were to decide the overstayer should, for whatever reason, be granted residency. There has to be some power, in those circumstances, to cancel the removal order, as otherwise the police are bound to continue actioning it.
Practical implications
[573] It is unclear to us whence Hammond J derives the proper question to be asked, namely, whether the “children or any of them had a present need for Ms Ding to stay in New Zealand – at least for the foreseeable future”: see [406]. If it is right, however, that such a question must be asked of any overstayer with children born here, then it is clear that the best advice any lawyer or immigration consultant could give to an overstayer who was desperate to stay is: hide for as long as you can and have as many children as you can.
[574] Further, if this is a compulsory inquiry of overstayers with children, then it would behove every parent who is here on a permit not to comply with the law but rather to stay until the service activates the removal process. Those who comply with the law and who leave voluntarily in good time get no humanitarian interview before they depart. Those who break the law and await the removal process will get
the benefit of a humanitarian evaluation, even in circumstances apparently where statutory humanitarian appeals have failed. This is directly contrary to a fundamental premise of the Immigration Act, namely “that persons who do not comply with immigration procedures and rules are not advantaged in comparison with persons who do comply”.
Joining the Ye children as parties
[575] When this case came first before Harrison J, on an application for an interim order under s 8 of the Judicature Amendment Act 1972, he made procedural orders: Ding v Minister of Immigration HC AK CIV2005-404-4900 1 September 2005. Among those orders was a direction to the registry “to appoint Mr Rodney Harrison QC as counsel for the children”: at [6]. Dr Harrison accepted appointment. It appears that subsequently he sought leave to have the Ye children joined as second plaintiffs. Harrison J dealt with that matter on 14 September 2005. He held:
I grant Mr Harrison leave, in his capacity as counsel for the children, to file, if necessary, a separate application for leave to join the children as second plaintiffs. I trust that course of action will not be necessary. Mr Neil [then counsel for the Minister of Immigration] has yet to take instructions. The interests of expedition would be served by the Crown consenting to the joinder of the children as second plaintiffs in the proceeding filed by Mrs Ding.
[576] Subsequently, on 3 October 2005 the Ye children were given “leave to file an amended statement of claim”. Harrison J noted that the Crown reserved its rights “fully to argue that the children have no standing, whether under the Care of Children Act 2004, any other statutory provision, or at common law”: at [3].
[577] There is little point in investigating whether Harrison J was right to join the Ye children. The crucial question, which the Crown raises on its appeal, is whether children should be joined as parties in future challenges to removal orders or so-called decisions under s 58.
[578] Given our view of the role of ss 54 and 58 in the current statutory scheme, there would, of course, be no scope for judicial review applications of the kind we had here. The issue as to joinder of children would accordingly not arise.
[579] We express no view as to whether children should be heard on a s 47 appeal. That has not been argued before us as, of course, Ms Ding abandoned her appeal under that section.
[580] We also find it unnecessary to consider the Crown’s argument as to whether litigation guardians should have been appointed for the children. That is not a point that would arise in the future if our views on the removal process were to prevail.
[581] Since we are in the minority on this topic, there is little point in a detailed analysis. We would not allow the Crown’s appeal and cross-appeal on these procedural points solely because this has developed as a major test case on which this court is very divided. Almost inevitably this case will find its way to the Supreme Court. It is important that the Ye children and the Qiu children, and their skilled advocates, should be able to argue this case at a higher level. The Supreme Court will then provide the definitive answer. Once the role of ss 54 and 58 has been definitively determined, these minor procedural points will all fall into place.
Baragwanath J’s declaration
[582] We agree with Glazebrook J on this question: at [351].
Result we would have given
[583] We would dismiss the Ye children’s appeal (CA184/06) and the Qiu children’s appeal (CA192/06).
[584] We would dismiss the minister’s cross-appeal in CA184/06, save that we would quash the declaration made by Baragwanath J (order F).
[585] We would dismiss the minister’s appeal from Harrison J’s judgment of
1 September 2005 (CA205/05).
[586] There is a majority in favour of allowing the Ye children’s appeal. By order of this court, the matter is remitted to the Immigration Service to be reconsidered, if
it sees fit. This is, with respect, a most unusual “order”, as it is not mandatory in its nature. Of course, it reflects s 58(5) – the no rights clause. But, in our view, the fact the “order” is in these voluntary terms simply confirms in our minds that, with respect, Glazebrook and Hammond JJ’s interpretations of the legislation are wrong.
Solicitors:
Inder Lynch, Manukau for Second Respondent in CA184/06 and for the Respondent in CA205/05
Mahon and Associates, Auckland for the Appellants in CA192/06
Equity Law, Auckland for the Second and Third Respondents in CA192/06
Crown Law Office, Wellington for Appellant in CA205/05, First Respondent in CA184/06 and
CA192/06
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