Zhang v Minister of Immigration
[2013] NZHC 790
•17 April 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-004097 [2013] NZHC 790
UNDER the Immigration Act 2009
IN THE MATTER OF an appeal under s 245 against a decision of the Immigration and Protection Tribunal
BETWEEN HAO ZHANG Appellant
ANDMINISTER OF IMMIGRATION Respondent
CIV-2012-404-004098
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for judicial review of a decision of the Immigration and Protection Tribunal
BETWEEN HAO ZHANG Plaintiff
ANDTHE IMMIGRATION AND PROTECTION TRIBUNAL First Defendant
ANDMINISTER OF IMMIGRATION Second Defendant
Hearing: 27 November 2012
Counsel: C Curtis for the Appellant in CIV-2012-404-004097 and for the Plaintiff in CIV-2012-404-004098
H J Sims for the Respondent in CIV-2012-404-004097 and for the Second Defendant in CIV-2012-404-004098
No Appearance of or for the First Defendant in CIV-2012-404-004098
ZHANG v MINISTER OF IMMIGRATION and ANOR HC AK CIV-2012-404-004097 [17 April 2013]
Judgment: 17 April 2013
JUDGMENT OF DUFFY J
This judgment was delivered by Justice Duffy on 17 April 2013 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Marshall Bird and Curtis P O Box 105045 Auckland City Auckland 1143 for the Appellant in CIV-2012-404-004097 and for the Plaintiff in CIV-2012-404-
004098
Crown Law P O Box 2858 Wellington 6140 (DX SP 20208) for the Respondent in CIV-2012-404-004097 and for the Second Defendant in CIV-2012-404-
004098
Copy To: Crown Law (D Harris) P O Box 2858 Wellington 6140 (DX SP 20208) for the
First Defendant in CIV-2012-404-004098
[1] In 2009, Hao Zhang was convicted of a charge of conspiring to import pseudoephedrine into New Zealand and sentenced to a term of 18 months’ imprisonment. As this offence was committed within five years of Mr Zhang being granted a residence permit, it was open to the Minister of Immigration (the Minister) to order that Mr Zhang be deported. Such an order was made in July 2010, following which Mr Zhang appealed to the Immigration and Protection Tribunal (the Tribunal). The appeal was unsuccessful. Mr Zhang now appeals against the Tribunal’s decision; he has also issued judicial review proceedings against the Tribunal and the Minister. The appeal and the judicial review have been heard together.
[2] Before the deportation order could be quashed, the Tribunal had to be satisfied of two things:
(a) That it would not be unjust or unduly harsh for Mr Zhang to be deported; and
(b)That it would not be contrary to the public interest for him to remain in New Zealand.
[3] Mr Zhang was able to satisfy the Tribunal on the second limb but not the first limb. The issue for this Court to determine is whether the Tribunal’s decision on the first limb was correct in terms of what the law requires for appeals of this nature and in terms of judicial review.
Legal principles
[4] Mr Zhang’s appeal against the Minister’s decision was commenced under the Immigration Act 1987, now repealed (the 1987 Act). The Tribunal, whilst constituted under the Immigration Act 2009, was required by s 446 of that Act to hear and determine the appeal in accordance with the law as it was under the 1987
Act. Section 105(1) set out the legal requirements for quashing a deportation order. Section 105(2) set out considerations that the Tribunal had to take into account when
deciding if it would be unjust or unduly harsh to deport an appellant from
New Zealand.
[5] The appeal to this Court is brought under s 245 of the current Act, which requires the appellant to establish that the decision of the Tribunal is erroneous in point of law. Leave is required to bring such an appeal. In this case, leave was granted by consent.
[6] As the Tribunal was required to determine Mr Zhang’s appeal in accordance with the former legislation, this Court’s assessment of whether the Tribunal’s decision is erroneous in point of law will also be made in accordance with the former legislation.
Analysis
[7] I have considered the grounds that Mr Zhang relies on in his appeal and the statement of claim for the judicial review proceeding. I consider that none of them establish that the Tribunal’s decision was erroneous in point of law. Instead, Mr Zhang’s arguments do nothing more than to attempt to argue against the merits of the Tribunal’s decision. However, in the course of hearing from the parties, it became clear to me that the Tribunal’s decision was erroneous in point of law in one regard: namely, it did not give adequate reasons for why the Tribunal concluded that it would not be unjust or unduly harsh to deport Mr Zhang from New Zealand. I raised this concern with counsel during the course of the hearing. I consider that having done so, it is open to me to determine the appeal on this basis.
[8] The respondent’s submissions set out a careful analysis of the reasoning process of the Tribunal that accurately portrays this process. First, the Tribunal approached its task under the first limb of the test in s 105 by carefully summarising Mr Zhang’s submissions on each of the relevant considerations specified in s 105. The summaries are accurate, but nothing is said regarding whether the Tribunal found the factual content of Mr Zhang’s submissions regarding his personal circumstances and the impact of deportation on himself and his family to be reliable or credible. The same can be said regarding how the Tribunal viewed the expert
evidence of the psychologist, Amanda McFadden, who provided expert opinion on the impact of deportation on Mr Zhang. The absence of any negative comment in this regard informs me that the Tribunal must have accepted as reliable and credible all the factual and expert opinion evidence that Mr Zhang advanced in favour of his case.
[9] The evidence that Mr Zhang relied on strongly favoured his being permitted to remain in New Zealand. It showed that he had spent his formative years of 15 to
24 years in New Zealand with his mother. She had left Mr Zhang’s father in China, due to her husband’s physical violence towards her. Three years after his arrival in New Zealand, Mr Zhang returned to China to undertake a hairdressing course. Whilst he was in China, he stayed with his father, maternal and paternal grandparents and an aunt and uncle. Seven months later, he returned to New Zealand. Since his return to New Zealand, he has lived in a home that is jointly owned by his mother and her new partner, a Chinese born man.
[10] At the time of the offending, Mr Zhang’s mother and her new partner had returned to China for immigration purposes, as the new partner did not have New Zealand residence. They were not able to return permanently to New Zealand until February 2009. During the three year period whilst his mother was in China, Mr Zhang remained in the family home with his stepsister (the daughter of his mother’s partner). Mr Zhang and his stepsister were responsible for the mortgage payments and outgoings on the home and they found these difficult to meet. Over this three year period, Mr Zhang’s mother made several trips to and from China.
[11] Mr Zhang’s mother, his stepfather and his stepsister gave evidence outlining strong reasons for him remaining in New Zealand. These included the good relationship he had with his stepfather and stepsister, the strong bond he has with his mother, and the assistance he gives to her in running the family restaurant.
[12] The Tribunal was advised of Mr Zhang’s connection with New Zealand, that he had lived here for the majority of 10 years, he considers New Zealand to be his home, and that there has been a lack of contact with his father and paternal family.
The Tribunal was also advised of Mr Zhang’s doubts that any support could be
obtained from his father or extended family if he were to return to China.
[13] The Tribunal was made aware by Mr Zhang’s mother that she doubted that he would obtain support from his father or extended family in China. She outlined her health problems to the Tribunal and the heavy dependence she placed on Mr Zhang to help her with her business in New Zealand. In this regard, the Tribunal was informed that Mr Zhang has a good command of English, whereas his stepfather does not and is busy engaged in his own business activities.
[14] Secondly, the Tribunal assessed the nature of Mr Zhang’s offending, including the nature and seriousness of the charge, which was one of conspiracy to import an illicit class C drug, as well as the fact that this was Mr Zhang’s only criminal offence. The Tribunal accepted Mr Zhang’s expressions of remorse and his intention not to reoffend. This is evidenced by its finding under the second limb of s 105 that it would not be against the public interest for him to remain in New Zealand.
[15] Thirdly, the Tribunal considered the time that Mr Zhang has spent in return visits to China since he first arrived in New Zealand with his mother, as well as the period of education he had in China and his training there as a hairdresser.
[16] Fourthly, the Tribunal drew its own inferences from the evidence that Mr Zhang has some family remaining in China. These were relatives of his mother from whom she is estranged; and Mr Zhang’s father, who has remarried and started a second family, as well as the paternal grandparents and other paternal family members. The Tribunal appeared to accept that Mr Zhang has no strong ties with these persons at present, but the Tribunal inferred that Mr Zhang “is now an adult whose relationship with his father can develop (or not), independently of his mother”. No regard was paid to the impact of a return to China on Mr Zhang if his relationships with his father and other relatives (which the evidence showed are not presently strong) do not develop.
[17] I consider that the outcome of the appeal must have been finely balanced. I say this because the evidence of Mr Zhang’s personal and family circumstances seemed to me to strongly support him not being deported. At the same time, the offending for which he was sentenced to 18 months’ imprisonment, whilst serious, is at the lower end of offending that can lead to deportation. The threshold for such offending is a sentence of imprisonment of 12 months or more and Mr Zhang exceeded the threshold by no more than six months. When all the factors set out in s 105(2) are taken into consideration, there is no particular factor that clearly points in favour of the order not being quashed.
[18] At [64]–[70], the Tribunal set out its conclusions on the topic of injustice or undue harshness, if the deportation were to proceed. The Tribunal noted that it must weigh the gravity of Mr Zhang’s offending against his humanitarian circumstances in order to determine whether it would be unjust or unduly harsh for him to be deported. The Tribunal then noted that his offending was not towards the upper end of the scale of seriousness as far as “drug importation” was concerned. Here, the offending involved no more than conspiring to import a class C controlled drug. The sentence of imprisonment was a short sentence in terms of the Sentencing Act 2002 and, despite the presumption in the Misuse of Drugs Act 1975 of a sentence of imprisonment, Mr Zhang would have been eligible to serve a sentence of home detention. Had his mother been aware of the offending at the time of sentence and had she been able to stay in New Zealand, Mr Zhang may well have qualified for a sentence of home detention, which would have removed him from the threat of deportation under s 91 of the 1987 Act.
[19] Nonetheless, at [65] of its decision, the Tribunal found that he had not committed a “trivial offence, or that it was not serious”. It is not clear to me if this was said in the context of the category of offences that could result in deportation under the 1987 Act, or in general. The Tribunal acknowledged that it was to Mr Zhang’s credit that he recognised that the illegal substances he had conspired to import were instrumental in causing harm to the community.
[20] The Tribunal then accepted that in terms of Mr Zhang’s humanitarian circumstances, he was “now settled in New Zealand, having been here for more than nine years during a formative period of his life”. The Tribunal also accepted that his “expectations and plans for his future in New Zealand will be dashed if he is deported”. The Tribunal then concluded at [67] of its decision that:
… while much has been made of his lack of familiarity with China and in particular its business practices, the Tribunal is confident that with his artistic and hairdressing skills, fluent English and entrepreneurial attitude, he will be able to create a livelihood for himself in China.
The basis for the Tribunal’s confidence in this regard, which can only have been a matter of inference, is not stated. Given the Tribunal did not reject the evidence regarding Mr Zhang’s unfamiliarity with China and, in particular, the business practices carried out in that country, it is hard to assess whether the inference is one that was open to the Tribunal to draw.
[21] The Tribunal acknowledged at [68] that deportation would clearly distress Mr Zhang and his mother. It recorded that there could be repercussions for her marriage, as a result of her unhappiness, if her son were deported. However, it noted she could visit him in China and telephone him. It also noted that she could accompany him to China on a permanent basis. In saying this, it recognised that if she did so, this could have a detrimental impact on her business in New Zealand, and the continuation of her married relationship with her new husband.
[22] Having said all this, the Tribunal then found at [69] of its decision:
… international law recognises that families are to be protected against arbitrary or unlawful interference. However, in this case, the Tribunal does not consider that deportation is a disproportionate response to the appellant’s offending, even taking into account his and his mother’s very close bond. The appellant is 24 years old, has lived for long periods in the past without his mother, is artistic, entrepreneurial and has qualifications and work experience in a useful trade. While his relationship with his mother is strong, he is appropriately recognised as an adult and can be expected to live independently of her, particularly given that his father and other relations will be available to him in China, albeit in not such overtly supportive roles as his mother.
This led the Tribunal to find at [70]:
Weighing the nature and seriousness of the appellant’s offence against his personal and family circumstances, most particularly his relationship with his mother and the time he has spent in New Zealand, the Tribunal finds that it would not be unjust or unduly harsh for the appellant to be deported.
[23] The outcome is based on superficial and conclusory reasoning, which does little more than declare that the seriousness of the offending outweighs the evidence of humanitarian circumstances. The outcome is also influenced by the Tribunal’s confidence that Mr Zhang will be able to make a go of it successfully in China, despite no basis for this confidence being expressed in the decision beyond recognition of Mr Zhang’s skill set and English speaking ability.
[24] The importance of a decision-maker giving reasons was recognised in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546. The Court of Appeal identified three bases supporting this principle. The first was that “without reasons, it may not be possible to understand why judicial authority has been used in a particular way”: see [79]. The second basis why decision-makers exercising judicial authority must give reasons was because “failure to do so means that the lawfulness of what is done cannot be assessed by a court exercising supervisory jurisdiction”. In this regard, the Court said at [80]:
Those who exercise power must keep within the limits imposed by the law. They must address the right questions and they must correctly apply the law. The assurance that they will do so is provided by the supervisory and appellate courts. It is fundamental to the rule of law. The supervisory jurisdiction is the means by which those affected by judicial orders, but who are not parties to the determination and who have no rights of appeal or rehearing, obtain redress. Their right to seek such review is affirmed by s 27 of the New Zealand Bill of Rights Act 1990. It is important that sufficient reasons are given to enable someone affected to know why the decision was made and to be able to be satisfied that it was lawful. Without such obligation, the right to seek judicial review of a determination will in many cases be undermined.
[25] The third main basis for giving reasons was that they “provide a discipline for the Judge which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice”: see [82].
[26] The Court of Appeal recognised that, on occasions, reasons may be abbreviated and that, in some cases, they will be evident without express reference: see [81]. Because I see the outcome in this case as having been finely balanced and much of the evidence relating to the factors in s 105(2) is supportive of the deportation order being quashed, I do not consider that this case was one where it could be said that the Tribunal’s reasons for not quashing the deportation order are self-evident.
[27] At [70], the Tribunal concluded that when the nature and seriousness of Mr Zhang’s offending was weighed against his personal and family circumstances, particularly his relationship with his mother and the time he had spent in New Zealand, it would not be unjust or unduly harsh for him to be deported. Why it reached that view on the evidence before it is neither properly expressed in, nor apparent from the decision. In the preceding paragraph, the Tribunal perhaps alludes to some basis for reaching the conclusory outcome in [70] with its finding that Mr Zhang is a 24 year old with qualifications and work experience in a useful trade and with some family connection in China who could be expected to live there independently of his mother. However, this finding was made against a background of evidence that the Tribunal had not rejected, and which showed that from birth until 12 years, he had lived in China with his mother and father. Between the ages of
12 and 15, following his parents’ separation and his mother’s departure for New Zealand, he had lived with his father in China. He had then travelled to New Zealand and lived with his mother, and remained with his mother, apart from the seven months he spent in China with his father and other relatives whilst he was learning hairdressing. In addition, the offending which made him liable for deportation had occurred at a time when he was 20 years old and living in New Zealand without his mother’s support, as she had been obliged to return to China with her new partner whilst the partner sorted out his immigration status in New Zealand. Thus, the evidence in front of the Tribunal did not strongly point to Mr Zhang being a young adult who could reliably live independent of support from the key relative in his life. Further, the Tribunal did not identify the evidential basis it relied on when it inferred that Mr Zhang might get support from his father and other relatives in China.
[28] Thus, it is not immediately apparently why the Tribunal concluded that the weighting of the s 105(2) factors before it favoured the conclusion that it would not be unjust or unduly harsh for Mr Zhang to be deported. Whilst the weight attached to individual factors taken into account in a reasoning process is always a matter for the decision-maker, too excessive, or too insufficient weight going one way can result in a decision being unreasonable: see Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606 at 635:
In most circumstances it is trite to say that the question of weight as between competing considerations is entirely for the decisionmaker and not for the Court on review. I accept that there could be instances where the weight of considerations one way is so much stronger than the weight of the considerations the other way as to lead to the conclusion that the decision- maker has acted unreasonably.
But without having the reasoning process disclosed, it is not possible to say if the decision could be successfully challenged on the ground of unreasonableness. Thus, the absence of reasons might have deprived Mr Zhang of an available ground of appeal (being a point of law) or judicial review. On the other hand, absence of reasons can support the view that a decision is one that no reasonable decision-maker could reach. In R v Secretary of State for Trade and Industry, exp Lonrho Plc [1989]
1 WLR 525 at 539–540, Lord Keith said:
The absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for the suggested irrationality of the decision. The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reason for his decision.
This ground of review was not advanced at the hearing.
[29] When there is little in the way of considerations that favour not quashing a deportation order, it may be sufficient for the Tribunal simply to say that the nature and seriousness of the offence outweighs the personal and family circumstances of an appellant. But when the evidence of personal and family circumstances favouring an appellant remaining in New Zealand is strong, is supported by independent expert evidence, and none of this evidence is rejected for being unreliable or not credible by
the Tribunal, it seems to me that more expressive reasons are required for reaching the conclusion that the deportation order should stand. This is particularly so when the criminal offending was not of the most serious kind. Indeed, in terms of the offending under the Misuse of Drugs Act, it was relatively low level criminal offending, being conspiring to import a drug in the least serious category of illegal drugs in Schedule 3 of this Act. The nature of the seriousness of the offence is also reflected in the term of imprisonment that was imposed. To be vulnerable to deportation, the sentence of imprisonment must be more than 12 months. Here, Mr Zhang received 18 months’ imprisonment. Whilst this is over the threshold, it is so by no great margin. Thus, this is not a case where the seriousness of the offending and so the heavy weight to be attached to it in favour of deportation speaks for itself. In circumstances where the seriousness of the offending will not attract unduly proportionate weight, and where there are strong factors favouring the appellant remaining in New Zealand, I consider that fairness requires the Tribunal to set out expressly and adequately why it has concluded that the deportation order should stand: see R v Secretary of State for the Home Department ex p Duggan [1994] 3
All ER 277 at 287. By not doing so and for the reasons expressed in Lewis, I
consider that the Tribunal has erred in point of law.
[30] This finding of an error of law is sufficient for Mr Zhang to succeed in his appeal and in his judicial review. Insofar as there may be thought to be some constraint on treating the grounds of appeal as amended in this way, there is no such restraint when it comes to judicial review. As part of its supervisory jurisdiction over tribunals of inferior jurisdiction, this Court has a duty to correct errors of law that come to its attention in a judicial review claim, even when they were not at the forefront of a plaintiff ’s claim. The Judicature Amendment Act 1972 had a procedurally liberating effect in this regard.
[31] The procedural error the Tribunal has committed requires the decision to be considered afresh by a differently constituted Tribunal. Accordingly, I set aside the Tribunal’s decision confirming the Minister’s deportation order and I remit the matter back to the Tribunal for it to consider afresh.
Result
[32] Mr Zhang has succeeded in his appeal against and in his judicial review of the Tribunal’s decision. The matter is remitted back to the Tribunal to be considered afresh by a differently constituted Tribunal.
[33] Leave is reserved to the parties to file memoranda as to costs.
Duffy J
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