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Last Updated: 22 January 2018
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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
AND MINISTER OF IMMIGRATION First Respondent
AND YUEYING DING Second Respondent
CA192/06
AND BETWEEN ALAN QIU AND STANLEY QIU Appellants
AND MINISTER OF IMMIGRATION First Respondent
AND HE QIN QIU Second Respondent
AND XIAO YUN QIU Third Respondent
CA205/05
AND BETWEEN MINISTER OF IMMIGRATION Appellant
AND YUEYING 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.
B The 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.
C The 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.
D Costs 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.
F The 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.
H The 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] UKHL 43; [2006] 1 WLR
2305 at [30] (HL). The principle has also been applied in New Zealand in D v
S [2001] NZCA 374; [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 [2006] NZHC 1149; [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] NZCA 446; [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] HCA 20; (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] FamCA 610; (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 [1984] FCA 252; [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) <http://www.msd.govt.n z> (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)
[2004] NZCA 244; [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
<http://www.unhchr.c h> (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)
[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, [1958] USSC 56; 356 US 44 at 64 (1958), subsequently adopted in Afroyim v Rusk, [1967] USSC 132; 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 <http://www.myd.govt.n z> (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 [2004] UKPC 49; [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] HCA 20; (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] HCA 60; (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] HCA 81; (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)
[2004] UKHL 55; [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] UKHL 26; [2004] 2
AC 323 at [6], [30] and [63] (HL); Fong Yue Ting v United States, [1893] USSC 185; 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) [2005] NZSC 38; [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)
<http://www.asiapacificforum.net>
(last accessed 17 July
2008).
[120] In Ullah it was held that other rights in the ECHR (some of
which are contained in BORA) could be used as a basis for a non-citizen to
remain
in the country such as art 2 (right to life), art 5 (right to liberty and
security of person), art 6 (entitlement to fair and public
hearing and other
minimum standards of criminal procedure) and art 8 (right to family and private
life). Lord Bingham stated that
reliance could be placed on the above articles
but (at [24]) His Lordship held that a very strong case was required. Lord
Steyn
agreed that, in respect of immigration decisions, articles other than art
3 might be engaged as a basis for a non-citizen to remain
in a country (at
[39]). Lord Walker of Gestingthorpe (at [52]), Baroness Hale (at [53]) and Lord
Carswell (at [67]) agreed.
[121] The right to control borders has been recognised in
international jurisprudence as a countervailing factor
to children’s
rights. For instance in Winata v Australia CCPR/C/72/D/930/2000 16
August 2001 at [7.3], the United Nations Human Rights Committee observed, with
respect to the rights to family
life and the rights of the child under arts
17, 23 and 24 of the ICCPR, that it is certainly unobjectionable under
the Covenant that a State party may pass laws which require the departure of
persons who remain in its territory beyond limited duration
permits. It was also
said that the fact that a child is born, or that by operation of law such a
child receives citizenship either
at birth or at later time, is not sufficient
of itself to make a proposed deportation of one or both parents arbitrary.
However
the Committee found that, given the duration of the
parents’ presence in Australia (14 years) and the child’s
(13
years), the State was required to show additional factors which justified
removal. The Committee held that in that case removal
would constitute
arbitrary interference with the family. See Sahid v New Zealand
CCPR/C/77/D/893/1999 11 April 2003 which supports this approach.
[122] The approach of the Human Rights Committee is, of course, in accord with the approach in Tavita v Minister of Immigration [1994] NZAR 116 (CA) and
Puli’uvea whereby the right to control borders is balanced
against the best interests of the child.
How should the various factors be balanced?
[123] It will be clear from what I have said above that, where
“overstayer” children are involved, there will be a clash
of two
fundamental concepts of international law – the necessity to take into
account the best interests of the child and a
sovereign State’s right to
control its borders. That these two fundamental concepts are at issue is a
further reason why,
absent an explicit statutory provision in the Immigration
Act, the paramountcy principle contended for by the appellants could not
prevail. Where a citizen child is involved there is yet another fundamental
concept of law involved – the rights of residence
flowing from
citizenship. As I have held above, a child’s New Zealand citizenship
must be separately identified and weighed
– see above at
[110].
Detriment to child
[124] In assessing the best interests of a child, the immigration officer will be hampered both by a lack of full information and a lack of expertise. Because of this, the immigration officer is entitled to assume that it is in the best interests of the child to remain in New Zealand with his or her parent or parents – see Minister of Citizenship and Immigration v Hawthorne (2002) 222 DLR (4th) 265 at [5] (FCA) per Décary JA (Rothstein JA concurring). It might even be argued that immigration officers are obliged to make that assumption as this accords with the view of the child’s parents. The parents must be assumed to be taking their child’s best interests
into account (subject to there being no care and protection concerns in
relation to the parents).
[125] The immigration officer should then assess, on the basis of the information he or she does have, the detriment to the child if the removal proceeds. This obviously involves a comparison between the child’s current situation in New Zealand and that which would pertain in the destination country. Both positive and negative aspects would of course be taken into account. It may also involve an assessment of any
realistic (if unpalatable) alternatives, such as a child remaining in New
Zealand with one parent.
[126] The need to evaluate the conditions that a child will encounter in the country that their parent(s) are removed to is a theme in the case law – see Al-Hosan at [56]; Daganayasi v Minister of Immigration [1980] 2 NZLR 130 at 139 – 140 (CA); Kaufusi at 482 – 483 and Cebreros v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 213 (3 April 2002) at [121] which considered the citizen child’s educational opportunities in Albania; Munar v Canada (Minister of
Citizenship and Immigration) (2006) 261 DLR (4th) 157 at
[39] (FC); Simoes v
Canada (Minister of Citizenship and Immigration) (2000) 187
FTR 219 (FC); Nguyen v Canada (Minister of Citizenship and Immigration)
[2004] FC 1629 and Thiara v Canada (Minister of Citizenship and
Immigration) [2007] FC 387.
[127] The assessment of detriment should be performed as far as possible
from the perspective of the child. As Sachs J said in
M v The State at
[24], a truly child- centred approach requires a close and individualised
examination of the precise real life situation of the
particular child and, I
would add, in an immigration context, of their possible life if removal of the
parents occurred. In the
course of this exercise, a citizen child’s views
should be ascertained and taken into account in the manner discussed below
at
[138] - [146], or, in the case of “overstayer” children, in
accordance with ss 141B – D of the Immigration
Act.
Countervailing factors
[128] Any detriment to the child from the removal should then be balanced against the State’s right to control its borders. Parental conduct can also be taken into account. It is, for example, legitimate to have regard to the fact that a parent does not meet the character requirements in s 7 of the Immigration Act or that they are a security risk. After all, in such cases public safety will usually be involved. Deliberate evasion of immigration authorities may also be relevant. It must be legitimate to discourage the view that going into hiding and having a child takes a person outside the normal immigration procedures. On the other hand, where
children were conceived at a time when the parents were in the country
legally, any later evasion of immigration authorities may be
less
relevant.
[129] It is logical that the more serious the parental conduct, the more
serious the detriment to the child must be to tip the balance
and vice versa
– see the comments of Baronness Hale in Naidike at [75].
Nevertheless, care must be taken as to the weight attached to parental conduct.
It must be remembered that the focus where
children are involved is on the
children, not the parents, and that children are not responsible for their
parents’ conduct.
As Sachs J said in the criminal justice context in M
v The State at [18]:
Every child has his or her own dignity. If a child is to be constitutionally
imagined as an individual with a distinctive personality,
and not merely as a
miniature adult waiting to reach full size, he or she cannot be treated as a
mere extension of his or her parents,
umbilically destined to sink or swim with
them.
Result of balancing exercise
[130] It is not possible to lay down any rigid rules as to the result of
the balancing exercise. However, if, as in Schier and Rajan v
Minister of Immigration [2004] NZAR 615 (CA), any detriment is, on the
information available, relatively low then this is likely to be outweighed by
the State’s right to
control its borders and the detriment is unlikely to
be an impediment to removal. Even in cases where the detriment is greater
but
where it would not constitute a significant and sustained breach of the
child’s basic human rights (including the child’s
economic, social
and cultural rights) then this too (at least in the case of an
“overstayer” child) will likely be outweighed
by the State’s
right to control its borders.
[131] Whether this is so or not will depend on the circumstances of the particular child, including how long he or she has been in New Zealand, and any particular health, financial, cultural, language or educational issues. I note the emphasis the European Court of Human Rights places on length of residence, even for adults without family bonds – see Thym “Respect for Private and Family Life under Article
8 ECHR in Immigration Cases: A Human Right to Regularise Illegal Stay”
(2008)
[132] Where New Zealand citizen children are involved, the result of the
balancing exercise may be different from that which would
apply in the case of
an “overstayer” child. This is because there is the added factor of
their citizenship to be weighed.
Citizen children have the right to remain in
New Zealand and the consequent right to the benefits accruing from being in New
Zealand.
As indicated above, at [103] and [108], the removal of their parents
will cause either (at the least) a postponement of their enjoyment
of their
rights arising from that citizenship or their enjoyment of them without the
presence of their parent or parents.
[133] Serious potential detriment to a citizen child, even if it does not
amount to a breach of the child’s human rights may,
although not serious
enough to protect an “overstayer” child from removal, be
sufficient to ensure that the
right of New Zealand to protect its borders
is outweighed. Again this will, however, depend on the circumstances of the
child,
including length of residence – see above at [121] -
[122].
Do children have the right to be heard and have their views taken into
account in any immigration decision affecting their
parents?
Submissions
[134] The appellants’ submit that children have the right to be heard
and have their views taken into account in immigration
decisions affecting their
parents. Their first argument is that this right arises under s 6(2) of the
CCA. That section requires
that a child be given a reasonable opportunity to
express views on matters affecting the child and to have those views taken into
account. Given my decision that the CCA does not apply in the immigration
context, this argument obviously fails.
[135] As an alternative, the appellants allege that a breach of natural justice has occurred as they were entitled to be heard either directly or through the intermediary of their parents in respect of the likely impact on their welfare and best interests of their parents’ involuntary removal from New Zealand. This argument is based on s 27(1) of BORA and art 12 of UNCROC. In the appellants’ submission, a child’s
right to be heard is not capable of being satisfied merely by interviewing
the parents in relation to their own wishes, intentions
and circumstances. It
is submitted further that the failure to comply with natural justice
considerations vitiates any decision
to make the removal order and the
subsequent steps in execution of it.
[136] The Crown’s first argument in reply is that the right
to be heard is unnecessary as the removal of a citizen
child’s parents
does not directly affect the citizen child and therefore there is no adverse
treatment of the child’s
interests. I have already disposed of the
argument that the fate of the citizen children is the parents’ choice
– see
above at [102] - [105].
[137] The Crown’s alternative argument is that any right of the
children to be heard, whether under art 12 of UNCROC or otherwise,
is qualified.
The right only attaches to a child capable of forming his or her own views and
the weight to be given to those views
will depend on the age and maturity of the
child and the child’s level of knowledge of the consequences of removal.
Any right
to be heard exists for the purpose of ensuring those views are
considered and can be exercised by a representative.
Right to be heard
[138] There is no doubt that natural justice or fairness requirements apply in the context of immigration matters. In Attorney-General v Udompun [2005] 3 NZLR
204 at [87] (CA), it was accepted that immigration officials are subject to a
natural justice requirement even when making decisions
about the grant of
permits at the border. The extent of what is required to fulfil any obligation
to hear a person who will be affected
by a decision varies with the power that
is being exercised and the circumstances – see Daganayasi at
141.
[139] For the reasons I have set out above, the removal of parents has a direct effect on citizen children – see above at [104]. This in itself would trigger the natural justice requirement. Even if that were not the case, art 12 of UNCROC gives a child the right to express his or her views. It provides:
1. States Parties shall assure to the child who is capable of forming
his or her own views the right to express those views
freely in all matters
affecting the child, the views of the child being given due weight in accordance
with the age and maturity
of the child.
2. For this purpose, the child shall in particular be provided
the opportunity to be heard in any judicial and administrative
proceedings
affecting the child, either directly, or through a representative or an
appropriate body, in a manner consistent with
the procedural rules of national
law.
[140] Article 12 has been very broadly drafted using the words
“all matters affecting the child” –
see Ang, Berghmans and
others Participation Rights of Children (2006) at 16. It extends to much
wider matters than simply those in which the child has a specific right –
see McGoldrick “The
United Nations Convention on the Rights of the
Child” (1991) 5 Int’l J L & F 132 at 141 and Ang and Berghmans
at
17. The CRC Committee has confirmed that art 12 is a procedural guarantee
for children who find themselves embroiled in administrative
decision-making
processes as well as legal proceedings, including procedures relating to asylum
and family reunification –
see CRC Committee “Concluding
Observations of the Committee on the Rights of the Child: Canada” (20 June
1995) CRC/C/15/Add.37
at [13] and CRC Committee “Concluding Observations
of the Committee on the Rights of the Child: Germany” (27 November
1995)
CRC/C/15/Add.43 at [29].
[141] Article 12 obviously applies to all children, including citizen
children. In accordance with the principles discussed above
at [87] - [88],
the Immigration Act must be read consistently with art 12 if possible.
Therefore, in keeping with New Zealand’s
international obligations, the
interpretation of the Immigration Act that allows children to be heard even in
situations where the
child does not have a legally specific right under the Act
ought to be assured, unless there is something in the Immigration Act
which
would preclude such a right.
[142] The scheme of the Immigration Act provides the greatest clue as to whether a right to be heard ought to be accorded to the citizen child regarding the removal of his or her parents. Under the Immigration Act, children who are classed as “overstayers” have the benefit of provisions designed to protect their rights to be heard. Section 141B provides that children (those under 17 years of age) are to have a responsible adult to represent their interests. Under s 141C, to the extent
practicable given the level of maturity and understanding of the
minor, the responsible adult must attempt to elicit the
views of the minor and
make them known on behalf of the minor where appropriate. Under s 141D due
weight is to be given to those
views having regard to the age, level of maturity
and understanding of the minor. Since children who are classed as
“overstayers”
have a right to be heard, citizen children should be
accorded, at the very least, the same level of protection.
[143] I accept the Crown submission that the right to be heard will only accrue to children capable of forming their own views. However, there has been a sea change in the attitude towards children generally in the period since UNCROC came into force – see Herring “Children’s Rights for Grown-ups” in Fredman and Spencer at
145. This applies in particular to the extent to which the views of children
should be ascertained and taken into account in
decisions affecting
them. In HC v PS CA115/06 18 September 2006 at [9], for example, it
was held that a child as young as four years old could hold a view relating to
care arrangements.
How the right is exercised
[144] As the Crown points out, art 12 of UNCROC does allow a representative
to state the views of the child. In the case of Faifai v Chief Executive,
The Department of Labour HC WN AP217/99 14 June 2000, both the mother and
child were overstayers and it was held that, since the overstayer child’s
mother
acted as the child’s representative, that was sufficient to fulfil
the obligations under art 12 – see at [33] –
[34]. I agree that
this will suffice in relation to citizen children as well.
[145] However, any removal decision is one with significant effects on a child and particularly a citizen child. In light of this and of New Zealand’s obligations under UNCROC, to take into account the best interests of any children as a primary consideration, immigration officers must ensure that any representative of a child (usually the parent) is informed of his or her role as the representative of the child and that questions are put to the representative specifically directed to ascertaining the views of the child, particularly with regard to the child’s situation in New Zealand and likely future situation should the parent or parents be removed. A
proper opportunity will have to be afforded to the representative to
ascertain the child’s views in a child-friendly manner.
How the views should be weighed
[146] As to the weight to be accorded to a child’s views, I accept
the Crown submission that there is a difference between
ascertaining the
child’s views and the weight given to them. The weight to be accorded to
these views depends on the age and
maturity of the child and the level of
knowledge of the child of conditions in the possible destination country.
Equally, however,
I also accept the appellants’ submission that a failure
to ascertain and take into account a child’s views (as appropriate
depending on age, maturity and level of knowledge) may vitiate any decisions
made, although this is likely to be only in circumstances
where, as a
consequence of the failure, matters relevant to the best interests of the child
have not been properly taken into account.
How should information as to the best interests of any child (including
any assessment of their current and likely future situation)
be
acquired?
Submissions
[147] The Crown submits that an immigration officer has no positive obligation to make enquiries or conduct an investigation, independently of the parents, into the circumstances of the children. In the Crown’s submission, there would be practical difficulties in imposing any such requirement, such as having no powers to compel the production of information. There is also the general principle that applicants seeking a permit, licence or exemption are expected to produce all relevant information in support of their application – see s 34G of the Immigration Act. The Crown also points out that the onus is on the appellant, where an appeal is lodged, to satisfy the RRA that the requirements in s 47(3) are met.
Acquiring information
[148] I accept the Crown’s submission that parents (or other nominated
representatives) would normally be expected to put all
information before the
Immigration Service pertaining to the child’s current and likely future
situation, should the parents
be removed. However, if that is not the case, the
Service should in my view question the parent or representative appropriately
to
elicit the relevant information – see Yang v Minister for Immigration,
Multicultural and Indigenous Affairs [2003] FCAFC 258; (2003) 132 FCR 571 at [29] per Ryan and
Finkelstein JJ. This should be done from the child’s perspective and not
that of the parents.
[149] As discussed at [145] above, specific questions designed to elicit
the views of any children should also be posed. There
should be specific
questions designed to acquire information on the child’s views on his or
her current situation in New Zealand
and his or her likely future situation in
the destination country. Where there is more than one child, the situation and
views of
each child should be considered separately to the extent there are
differences between the children.
[150] The Service is not of course obliged to accept the material placed
before it by the parents. It can reject the concerns of
the child and his or
her parents (although one would expect some reason to be given as to why that
was the case). The Service can
also use any publicly available information
about the destination country and other information held by the Service,
including, for
example, country specific information gathered by its refugee
division. The Service would of course put any material they rely on,
including
publicly available material, to the parents for comment, both from their own
perspective and from that of the child.
[151] As publicly available information and that held by the Service generally can be used to the detriment of the child and its parents, I consider that the Service should ensure that it also takes into account any information held by it and publicly available information about the destination country that is favourable to the position of the child and his or her parents. See in this regard, Del Cid v Canada (Minister of Citizenship and Immigration) [2006] FC 326 at [30].
[152] I am not suggesting that an immigration officer is required to embark
on a major research exercise. What is said above applies
to information that is
obvious and readily available. I agree, however, with the obiter comments of
Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985)
65 ALR 549 at 563 (FC) that a decision-maker acts unreasonably by:
... failing to ascertain relevant facts which he knew to be readily available
to him. The circumstances under which a decision will
be invalid for a failure
to inquire are, I think, strictly limited. It is no part of the duty of the
decision-maker to make the
applicant’s case for him. ... But, in a case
where it is obvious that material is readily available which is centrally
relevant
to the decision to be made, it seems to me that to proceed to a
decision without making any attempt to obtain that information ...
[is] so
unreasonable that no reasonable person would have so exercised it.
[153] I also refer to Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 50 where the full Court of the Federal Court of Australia struck down a deportation order for failure to initiate further inquiries which would have taken little effort and were clearly relevant. See also Bunnag v Minister for Immigration and Ethnic Affairs [1993] FCA 607; (1993) 124 ALR 383 at
390 (FC), although in that case there was no obvious source from which the
relevant material was readily available.
[154] I do, however, accept that there is no general duty (or power) to
compel the production of relevant material other than that
which is publicly
available or otherwise held by the Service. In particular, unlike in
Luu, I do not consider that immigration officers are under any obligation
to obtain psychological (or medical) reports on children
(even if the
parents consent), save perhaps where there are particular concerns about a
child – for example, a particular
disability.
When should the welfare and best interests of any children and their
citizenship be taken into account?
Submissions
[155] The appellants argue that the child’s right to be heard should be exercised and their citizenship and best interests taken into account before any decision to make a removal order under ss 53 – 54 and not for the first time at the s 58 stage.
Section 58 permits cancellation of a removal order by a designated
immigration officer at any time while the person named in the removal
order is
still in New Zealand.
[156] In the appellants’ submission, there is a significant
difference between giving an opportunity to be heard before a
decision is made
and giving an opportunity to be heard only after an adverse decision has been
taken, even leaving aside questions
of apparent bias. This is especially the
case where the effect of making the decision is to deprive the person concerned
of their
liberty.
[157] The appellants accept, however, that there may be cases
where it is impossible to make satisfactory contact
with the person
potentially subject to removal or with their children without first initiating
the removal process. They
agree that in such circumstances the opportunity to
be heard and the balancing of relevant factors can occur at the s 58
stage.
[158] The Crown argues that giving an opportunity for the individual to be
heard at the time of making a removal order would
require notice to
be given of the possibility of making such an order and that this would
provide a perverse incentive for
a person to flee. The Crown, however,
accepts that there should be an opportunity to be heard (at least on any
new
matters arising since the last contact with the Immigration Service) at the
s 58 stage.
Timing of consideration
[159] After a removal order is made under s 54, the individual against whom the order was made can be taken into custody under s 59. This obviously has the potential to affect adversely both the detainee and any children. I accept the appellants’ submission that these adverse consequences point to the right to be heard being accorded, where practical, before a removal order is made, at least where there are children involved who might be affected by any detention. However, I also accept the Crown’s submission that giving notice of a potential removal order may create the risk of flight.
[160] This would suggest that, if there are (reasonable) concerns about
flight risk, then any right to be heard can be fulfilled
at the s 58 stage
rather than at the s 54 stage. After all, by the time a removal order is made,
the person is already in breach
of their obligation to leave the country.
Section 45 imposes an obligation on individuals to leave New Zealand unless
subsequently
granted a permit, operating “from the moment that a person is
in New Zealand unlawfully until that person leaves New Zealand”.
The
person subject to removal has also already had the opportunity to be heard (even
if not availed of) by way of appeal to the
RRA – see above at
[91].
[161] The extent of the process at the removal stage will depend on what
consideration has already been given to the case. In many
cases, only the
effect of any new or updating information will need to be considered, rather
than starting the consideration from
scratch. I am not suggesting, for
example, that it would be proper for the immigration officer to review any
decision of the RRA.
[162] If there is significant new or updating information, however, then a
new balancing exercise will need to be conducted, taking
into account that
information. In this regard, where children are concerned, the mere effluxion of
time will create new circumstances
(for example they will be further into their
schooling in New Zealand). Conditions in the likely destination country may
also have
changed, even within a relatively short timeframe.
[163] Even where the case is effectively being considered for the first
time, the fact that the person has had the opportunity to
have their case
considered at an earlier stage is relevant to the nature and extent of the
process at the removal stage. The Crown’s
characterisation of what must
occur at the removal stage as a “final check” is apt. The
“final check” is
for relevant considerations that might militate
against the removal, particularly where children are involved.
[164] I should also make it clear that any right to be heard is not a right to be heard orally, although at present that is the process adopted in the Service through the humanitarian questionnaire process described below at [171] - [176]. I assume that this process has been adopted for good operational reasons, such as ensuring that
only relevant information is placed before the Service, avoiding any
difficulties with translating written material and allowing for
speedy
resolution of any issues that might be raised.
Does the current process adequately fulfil the legal
requirements?
Submissions
[165] It is submitted by the appellants that the current New Zealand
Immigration Service’s Operations Manual (Operations Manual)
provisions and
the humanitarian questionnaire do not direct the decision-makers sufficiently to
a consideration of the best interests
of any child whose interests are affected
by a parent’s removal. The best interests of the child are nowhere
referred to in
the policy itself and the importance to be attached to that
consideration is not adequately stressed.
[166] There are also no relative weightings for the other matters that are
weighed against the best interests of the child. The
appellants argue that the
adverse factors listed involve a direct and primary focus on the position of the
parents and their conduct,
which is inappropriate as the children cannot be held
responsible for that conduct – see above at [128] - [129]. Further,
this
is inconsistent with and in breach of the need under s 4(3) of the CCA to
consider the parents’ conduct only to the extent
that is relevant to the
child’s welfare and best interests. In the appellants’ submission,
the imposing list of adverse
affects set out in the Operations Manual at
D4.45.5(b) (see below at [169] and [175]) and the humanitarian questionnaire
necessarily
and of itself results in a failure to address on the merits the best
interests of the child or children affected.
[167] It is submitted that the shortcomings of the policy are not mitigated by the assessment at stage three of the humanitarian questionnaire. While the stage three assessment paraphrases some of the international convention material, a statement such as “in all actions concerning children the best interests of the child shall be a primary consideration” is not specific enough and in particular does not identify or
address the special considerations which need to be brought to bear when the
child in question is a New Zealand citizen.
[168] The Crown argues that the humanitarian questionnaire covers all
relevant matters and provides a reasonable opportunity for
the person subject to
removal and their children to be heard.
Current procedures
[169] The Operation Manual, at D4.45 and D4.45.5, advises immigration
officers to take into account New Zealand’s international
obligations
under UNCROC and ICCPR, as well as other rights of the person being removed and
of the immediate family associated with
that person (particularly those who are
New Zealand citizens and residents). It then says that these matters must be
balanced against
the rights of the State to determine who should reside within
its borders, the principal goals of government residence policy, the
intention
of the Immigration Act to ensure a high level of compliance with immigration
laws and 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 –
see D4.45.5(b).
[170] The instructions to the humanitarian questionnaire (the document used
by an immigration officer to carry out a humanitarian
interview) states that it
is designed to be carried out “at the time of proposed service or
execution of a removal order”
which clearly refers to the ss 54 and 58
stages. According to the instructions, the purpose of the interview is to
elicit information
regarding personal circumstances which require further
interview and assessment according to New Zealand’s obligations under
international law and also the best interests of any children.
[171] Stage one of the interview process commences with basic personal details and circumstances such as their arrival in New Zealand, health, employment, criminal offences and financial circumstances. The questionnaire then asks why the individual has not returned to their home country, where they would live and how they would support themselves if they were to return to their home country and whether they have any family in New Zealand.
[172] Stage two of the questionnaire is completed only if stage one
indicates further investigation is required. It asks the interviewee
to
describe educational and medical services available in their home country and
basic questions about their spouse or de facto partner
as well as what effect
the removal of the individual would have on their spouse/de facto partner. The
questionnaire also asks questions
about the children such as whether they
have any health problems, special needs, who financially supports them and
has day-to-day
care. It asks whether the children will accompany the
interviewee back to his or her home country and what effect remaining in New
Zealand or leaving New Zealand would have on the children. Similar questions
are asked about children from other relationships,
the interviewee’s
parents and siblings. There is then a sheet provided for supplementary
questions.
[173] At stage three the immigration officers are instructed to carry out the
assessment. The instructions provided state:
Matters for consideration in accordance with New Zealand’s obligations under International Law including the International Covenant on Civil and Political Rights 1966, the Optional Protocol to that Covenant, the Convention on the Rights of the Child 1989, and New Zealand’s reservations to that Convention.
The family is the natural and fundamental group unit of society and the state. Every child shall have the right to such measures of protection as are
required by his status as a minor, on the part of his family, society and the
State.
In all actions concerning children the best interests of the child shall be a
primary consideration.
[174] The interviewer is asked to assess the significant changes that have occurred since any appeal or permit decision. He or she must then assess the potential separation from a spouse, partner or child and, whether any are New Zealand’s citizens. It then asks whether it is reasonable to expect the spouse, partner or child to live in the interviewee’s home country. If the spouse or partner or children are not to accompany the interviewee, the effect on them and any wider family is to be assessed. The location of family members and the interviewee’s health and any other relevant factors are also to be considered.
[175] Later in Stage three of the questionnaire there is a heading
“Public Interest
Factors” and the direction is given to the officers to consider the
following points:
The rights and interests of the government in determining who should reside
within its borders
The principal goals of Government Residence Policy
The intention of the Immigration Act to ensure a high level of compliance
with immigration laws, and
The intention of the Immigration Act to ensure that persons who do not comply
with immigration procedures and rules are not advantaged
in comparison with
persons who do so comply.
[176] Finally, the questionnaire asks if there are any character concerns,
whether there have been refugee claims which have been
declined and whether
there are other public interest factors.
Assessment of current procedures
[177] The list of countervailing factors set out in the Operations Manual at
D.4.45.5(b) (set out at [169] and [175] above) are permitted
considerations to
be weighed against the best interests of any children and the children’s
citizenship. However, I consider
that these factors really coalesce into one
– the right to control New Zealand’s borders. This should be the
focus
of any balancing exercise. There is force in the appellants’
complaint that the listing of a number of adverse factors runs
the risk of
leading to an unbalanced and partisan result where any concerns relating to the
best interests of the child or a child’s
New Zealand citizenship are
trumped by the sheer repetition (albeit subtly rephrased and written from a
different angle) of one adverse
factor.
[178] I also accept the submission that there is an inordinate concentration on the parents’ situation and conduct in the list of adverse factors, particularly in cases where a citizen child is involved. As I noted above at [129] children are not responsible for their parents’ conduct. This is not a matter of “rewarding” the parents’ bad conduct, for example their evasion of immigration authorities. It is
ensuring a proper focus on the best interests of any children involved, who
are to be treated as separate individuals with rights
and interests of their
own.
[179] I comment too that the argument about “queue jumping” (ie
not favouring those illegally in New Zealand over those
who follow procedures)
does not apply to the same extent in relation to the parents of citizen
children. There is a different category
of immigration entry for family
members of citizens so the fact that the parents do not meet the general
immigration categories might
be thought to have less relevance. When the
children are adult, they could sponsor their parents to come to New Zealand
under family
re-unification policies. Therefore this is not a case involving
persons who could never meet immigration requirements.
[180] Further, I accept the appellants’ submission that
the humanitarian questionnaire does not have a sufficient
focus on children.
The interviewee who is the parent of a citizen child is not informed of his or
her role as representative of
the child. All questions are asked from the
parent’s perspective and there are no questions directed at ascertaining
the
views of the children. Neither does the questionnaire adequately cover the
child’s current or future situation. In my view,
the questionnaire should
ask questions about social, educational, welfare and health opportunities in the
destination country, not
just generally but specifically in relation to the
child. Questions should address whether the child must become a citizen in
order
to access those benefits and if so, whether the citizen child would have
to relinquish New Zealand citizenship.
[181] Questions should be directed at ascertaining the child’s mother tongue and other languages spoken and written (and degree of fluency). How this would affect their integration into the community and their participation in the education system in the destination country must be considered. If the parent states that, if removed, he or she and the child will live with a particular family member, questions should be asked about the means of that family member (and any other family members) to help support the parent and the child. The child’s current situation in New Zealand as to social integration, educational, welfare and health issues should also be explored to give a proper point of comparison.
[182] A possible solution to ameliorate these deficiencies in the
humanitarian questionnaire would be to devise a separate questionnaire
or a
separate section of the parents’ questionnaire which would appropriately
concentrate on the views of the child and the
likely effects that removal would
have on him or her. A separate humanitarian questionnaire may in fact already
be administered
in some cases for overstayer children.
[183] The need for specific concentration on the views of a child and the
child’s current and likely future situation may
require more work on the
part of immigration officers. This follows inevitably from the requirement to
take the best interests of
any children into account as a primary consideration.
The extra work will, however, largely be in the need to ask further questions
of
the parents or other representative where all relevant information may not be
before the officer. As such, any extra work is
unlikely to be unduly
onerous.
Summary of factors
[184] I now attempt a summary of relevant factors in any removal decisions
where children are involved.
Best interests of the child
[185] The Immigration Act can and therefore should be interpreted
consistently with New Zealand’s obligations under UNCROC
– see above
at [87] - [88].
[186] The best interests of any children should be a (not the)
primary (not paramount) consideration in any removal
decision affecting the
children and/or their parents – see art 3(1) of UNCROC – see above
at [66] - [68]. Weight (“a
primary consideration”) is built
into the standard.
[187] It should be assumed and taken as a starting point that it will be in a child’s (whether “overstayer” or citizen) best interests to remain in New Zealand with his or her parent or parents. The immigration officer will not have sufficient information
or expertise to assess the best interests of the child independently of the
parents’ and child’s views – see above
at [124].
[188] The task of the immigration officer is to assess (on the
basis of the information set out below at [196]) the
detriment to the child
that will arise from removal – see above at [148] - [154]. The inquiry as
to detriment should be child-
centred and not parent centred – see above
at [127].
Citizenship
[189] The New Zealand citizenship of any children of a person to be removed is a separate consideration that must be taken into account in any removal decision – see above at [110]. The citizen child has a right to remain in New Zealand and to have the benefits (including education, health and welfare) that accrue from that residence
– see above at [99] - [101]. Removal of the parent or parents will
either require a citizen child to forego (at least temporarily)
the benefits of
residence and citizenship in New Zealand or will require those benefits to be
enjoyed without the presence of his
or her parent or parents – see above
at [103] and [108].
Right to control borders
[190] A State’s right to control its borders is a fundamental
incident of statehood. A State thus has the right to exclude
or expel aliens
(subject to certain limits at international and domestic law such as where a
person qualifies as a refugee, where
the person would be in danger of being
subjected to torture or where other fundamental human rights are at stake)
– see at
[116] - [122] above.
Parental conduct
[191] While the conduct of a parent and other considerations relating to the parents’ situation can be taken into account in the balancing exercise, some care must be taken as to the weight placed on those factors. The child ought not be burdened with responsibility for the parent’s actions – see at [128] - [129].
Balancing of factors
[192] Any detriment to the child from the removal and, where relevant, the
child’s citizenship is to be balanced against the
State’s right to
control its borders and, where relevant, parental conduct.
[193] No rigid rules can be laid down as to the result of the balancing
exercise. However, as a generalisation, significant
and sustained
deprivation of the basic human rights of a child (including economic, social
and cultural rights) is likely to
be necessary before the State’s rights
to control its borders will be out-weighed. This will depend, however, on
factors related
to the particular child, such as length of time in New
Zealand and any particular health or educational issues. Less
significant detriment may suffice in the case of citizen children – see
above at [130] - [133].
Summary of process
[194] Where a citizen child’s parents are subject to a removal order
the views of the child ought to be ascertained. This
can be carried out via an
adult representative (most likely the parents). The position of
“overstayer” children
is covered by ss 141B – D of the
Immigration Act – see above at [142].
[195] The child’s representative must be informed of his or her role as
the representative of the child. Questions should be
put to the representative
directed to ascertaining the views of the child, particularly regarding the
child’s views on remaining
in New Zealand, their views on the potential
removal of their parents and on the possibility of moving to their
parents’ destination
country – see above at [145].
[196] Although the individual subject of the removal order is usually expected to put all relevant information before the Immigration Service, the Service should, where this is not done, question the child’s representative appropriately as to the child’s current situation in New Zealand and likely future situation in the destination country – see above at [148].
[197] The Service should also use any readily accessible public information
and information held by the Service as to the destination
country. Such
material should be put to the person liable for removal and the child’s
representative for comment – see
above at [150] - [154].
[198] Where there is more than one child, the situation and views of each
child should be considered separately to the extent
there are
differences between the children – see above at [149].
[199] The best interests and views of the child should be taken into
account at the ss 53 – 54 stage of the removal process
except where there
are (reasonable) concerns about flight risk. In such cases any right to be
heard can be fulfilled at the s 58
stage (consideration of whether to cancel the
removal order) – see above at [159] - [160].
[200] The extent of the right to be heard and the consideration required at
the removal stage will depend on what consideration
has been given to the case
earlier in the process. The immigration officer is not required to review
earlier decisions made by the
Service, by specialist authorities or by the
courts. The task of the officer is to review the effect of any new or updating
information
or any information clearly not considered before – see above
at [161] - [162].
[201] Even in cases where the first consideration of the matter is at the
removal stage, the process can still be characterised
as a “final
check” to ensure all relevant information is taken into account in the
balancing exercise – see at
[163] above.
What is the effect of the 1999 amendments to the Immigration
Act?
[202] The humanitarian questionnaire process set out above at [171] - [176] was the Immigration Service’s response to this Court’s decision in Tavita. The discussion so far in this judgment has assumed that Tavita and Puli’uvea still represent the law in New Zealand and are still applicable to the removal process under the Immigration Act.
[203] Chambers and Robertson JJ, and to a lesser extent Hammond and Wilson
JJ, take the view that the 1999 amendments to the Immigration
Act overruled the
decisions of Tavita and Puli’uvea, insofar as they apply to
the removal process. Chambers and Robertson JJ characterise the current
humanitarian interview process
as contrary to Parliament’s intention. In
their view, the RRA and the Minister of Immigration are the only authorities
that
have the power to consider humanitarian considerations. Hammond and Wilson
JJ, taking a less extreme stance, suggest that the humanitarian
interviews at
the ss 54 and 58 stages are laudable but not necessary under
statute.
[204] That the 1999 amendments had rendered the processes followed by the
Immigration Service voluntary (at best) was not a position
advanced by any of
the parties. We thus did not have the benefit of hearing argument on it.
Indeed, the Crown, in the course
of argument, accepted that the current
humanitarian interview process was necessary, at least to gather any updating
information.
In my view, this was a position that was both responsible and
legally correct.
[205] Far from overruling Tavita and Puli’uvea, the
1999 amendments were passed in full knowledge of the humanitarian interview
procedure and with the intention that this should
continue. Those procedures
are in accordance with New Zealand’s obligations at international law
and also accord with
principle. I propose to elaborate on these matters under
the following headings:
(a) Parliament’s purpose;
(b) Statutory indications within the Immigration Act; and
(c) Processes not explicit in statute.
Parliament’s purpose
[206] There is nothing in the 1999 amendments which explicitly deals with Tavita and Puli’uvea. If Parliament had intended to overrule them, insofar as they apply at the removal stages, it would have said so explicitly. Indeed, given the presumption
that statutes will be interpreted to accord with the fundamental values of
the common law, BORA and international obligations, Parliament
would have been
required to deal specifically (or by necessary implication) with Tavita
and Puli’uvea, had its purpose been to overrule those
decisions. This applies with even more force if UNCROC does form part of
customary international
law – see above at [89].
[207] Parliament was well aware of the procedures operating within the Immigration Service just prior to the 1999 amendments. During the Select Committee process, the Social Services Select Committee requested information on the procedure current at that time and the procedure that would pertain following the
1999 amendments. The Immigration Service produced documentation that
included a flow chart on the procedure in operation –
see Social Services
Committee Submission Imm/NZIS/4. This alerted the Select Committee to the fact
that immigration officers considered
Tavita implications prior to
removal.
[208] I also refer to a report discussing the submissions received and
recommendations relating to suggested alterations to the 1999
Amendment Bill,
submitted by the Immigration Service on 21 December 1998, at the request of the
Select Committee. In that report,
the Immigration Service responded to the New
Zealand Law Society’s concerns that New Zealand’s international
obligations,
as affirmed in Tavita, might be neglected under the proposed
1999 amendments – see Social Services Committee Submission Imm/NZIS/7
at 17.
The Immigration Service report provided reassurance on that issue.
It said:
(iii) The NZIS [Immigration Service] has very well developed
guidelines for assessing the implications of the Tavita decision in
individual cases and these have had endorsement in their use from the High Court
and Court of Appeal. The proposed changes
to the removal regime do not alter in
any way the need for, or the NZIS’s commitment to, taking appropriate
account of Tavita implications when executing a removal
order.
[209] It is clear from the above that the Immigration Service itself made a conscious decision to continue the humanitarian interview procedure after the 1999 amendments. I note too that, at the foot of D45.5 of the Immigration Service’s Operations Manual which describes the effect of international obligations on
removal actions, it is recorded that the policy is “Effective
01/10/1999”, which is the date on which the 1999 amendments
came into
force.
[210] It is also clear from the above that the Select Committee, and
therefore Parliament, was well aware of the procedures in
operation before the
1999 amendments and the Immigration Service’s commitment to their
continuation after the amendments.
If Parliament had intended that these
procedures would cease, it would have said so. It did not. As noted above,
this is unsurprising
as the continuation of the procedures is necessary in many
cases under BORA and for the fulfilment of New Zealand’s international
obligations. Parliament did not envisage any change to s 54 as stated in the
explanatory note to the Immigration Amendment Bill
no. 183-1 at (x):
The new sections 54 to 57 deal with removal orders, and largely replicate
existing removal order provisions in the Act.
[211] There is no doubt that the 1999 amendments sought to “ensure
that persons unlawfully in New Zealand are removed quickly”
– see
Immigration Amendment Bill no. 183-1 Commentary, p. (ii). An important aspect
of the amendments is the new obligation
on persons to leave New Zealand
“from the moment” they are unlawfully in New Zealand (the current
s 45). Coupled
with this is the obligation on individuals to activate any
appeal to the RRA within what became 42 days from the expiry of their
permit.
[212] What this means is that the administrative removal decision of the immigration officer (made after the humanitarian interview at the removal stage) is not subject to review by the RRA. This is because an opportunity for review by the RRA now occurs at an earlier stage. Because of the strict time limits for any appeal to the RRA, however, there will be many cases where there is no RRA appeal at all – see Removal Review Authority Annual Report 2007 (Appendix Three) <http://www. removalreviewauthority.govt.nz> (last accessed 21 July 2008) for statistics on late/invalid appeals. (However there are no figures existing for those who did not file an appeal at all.) For those who do not file an RRA appeal or who file it outside the time limits, the Immigration Service’s humanitarian procedure will be the only time New Zealand’s international obligations will be considered.
[213] An internal Immigration Service memorandum documenting the changes
pursuant to Tavita and the Immigration Amendment Act 1999 makes this
point:
Legal: International Obligations/Tavita implications
The Immigration Amendment Act 1999 substantially changes the way in which
removals will operate. ... Where once removing people was
the final and a long
process, under the new regime, there is likelihood that this final step will be
the process.
In practical terms, the removals process has now become a “one
step” process and as such, increases the likelihood that
a person’s
first contact with NZIS could be when you arrive to physically remove that
person from New Zealand.
That being the case, you must be prepared to carefully consider the
person’s circumstances when making a removal decision.
Officers must be
aware of our international obligations when making such decision.
[214] It is true that there remains the possibility of consideration by the
Minister of Immigration under s 130. However, the Minister
is not obliged to
consider any such applications – see s 130(6)(a). Further, there is no
obligation to give reasons and it
must be assumed that the Minister would
operate under advice from immigration officials in any event. The ability to
apply for a
special direction therefore provides no guarantee that New
Zealand’s international obligations will be met. That is the province
of
the Immigration Service’s humanitarian questionnaire procedure, as
outlined to the Select Committee.
Statutory indications within the Immigration Act
[215] Although the humanitarian questionnaire process is not contained
within the statute itself, it is clear from [208] and [210]
above that this was
not necessary as the procedure was already in operation at the time of the 1999
amendments and was to continue.
It was already seen as a necessary process to
ensure compliance with international obligations.
[216] Further, there are two statutory indications that are consistent with its existence. The first is the current s 54(2), which contains a requirement that “[a]n immigration officer may not make a removal order in respect of a person if the
officer has at any previous time been involved in determining an application
by that person for a permit.” This requirement
was first inserted by the
1991 amendments.
[217] The preservation in the 1999 amendments of this requirement for a
fresh look to be taken at the removal stage by a different
immigration officer
is telling. The rationale for this must be that there is still some kind of
assessment to be undertaken at the
s 54 stage and Parliament saw it as unfair
for the decision to be made by the same immigration officer who refused the
applicant’s
permit application. If the removal order under s 54 was a
mere formality (a mere matter of ticking the s 53 boxes), then a different
person would not be required to make the decision.
[218] Another indication that a considered assessment is required
even after a removal order is served is demonstrated
in s 55, subs (2)(a) of
which provides for notice of a removal order to be given to the person
named in the order and
subs (2)(c) of which provides for advice to be given
to a person that he or she may contact a solicitor or counsel or responsible
adult designated or nominated under s 141B. The advice to the person who is
being removed that he or she can contact a lawyer or
responsible adult suggests
that, even after the removal order has been made, all is not necessarily
lost.
[219] For completeness, I note that s 58 was carried over essentially in its current form from the 1991 Act which was the period in which the decision in Puli’uvea was made. Its existence in the Act cannot therefore herald an intention to overrule Puli’uvea (or indeed Tavita), nor an intention to change the humanitarian interview procedure already undertaken by the immigration officers at the removal stage. Further, in terms of s 130, which allows the Minister to make special directions, there was no statutory indication that the 1999 amendments heralded a return to the position prior to 1991 whereby the Minister decided all humanitarian concerns. This obligation had placed an inordinate burden on the Minister, which the 1991 amendments were designed to remove.
Processes not explicit in statute
[220] Fairness, the cornerstone of administrative law, acts to guard
against the arbitrary use of power and enjoins those making
administrative
decisions to hear parties and to give reasons. As stated by Lord Bridge of
Harwich, the courts will not only require
procedure prescribed by statute to be
followed, but will readily imply such additional procedural safeguards as will
ensure the attainment
of fairness – see Lloyd v McMahon [1987] UKHL 5; [1987] AC
625 at 702 – 703 (HL). That view has now, according to Woolf, Jowell,
and Le Sueur De Smith’s Judicial Review (6ed 2007), been
widened (at [7-014]):
The test today of whether to supplement statutory procedures is no longer
whether the statutory procedure alone could result
in manifest
unfairness [Furnell [1973] AC 660 at 679]. The preferable view is that
fairness must, without qualification, be attained, and that the “justice
of the common law” may supplement that of the statute unless by necessary
implication the procedural code must be regarded
as exclusive.
[221] Factors to be considered are the comprehensiveness of the code, the
degree of deviation from the statutory procedure required
and the overall
fairness of the procedure to the individual concerned – see De Smith
at [7-014]. Fairness, proper purpose and anti-discrimination considerations
will come to the fore here.
[222] The Supreme Court has already seen fit to read in procedural
requirements not explicitly provided for in the Immigration Act.
In Zaoui
(No 2) the Supreme Court read into s 72 of the Immigration Act 1987, a
procedure which was not explicit on the surface of the provision.
Section 72
states that:
72 Persons threatening national security
Where the Minister certifies that the continued presence in New Zealand of
any person named in the certificate constitutes a threat
to national security,
the Governor-General may, by Order in Council, order the deportation from New
Zealand of that person.
[223] This is prescriptive in the same sense as s 54 is prescriptive. However, the Supreme Court held that the surface meaning of the words ought to be imbued with a meaning that is consistent with international law – see at [90]. The Supreme Court read in three procedural aspects to s 72 (see at [92]):
(a) That there is no pressing prescriptive time requirement and that
“those charged with responsibility, while having regard
to the purpose
stated in s 114A(f) that a decision can when necessary be taken quickly and
effectively, should have adequate time
to address the issues of fact and
judgment involved.”;
(b) The bar on the Minister’s obligation to give reasons when
confirming the certificate does not apply to decisions under
s 72. Rather, the
general right to have reasons on request found in s 23 of the Official
Information Act 1982 applies, although
there may be applicable provisions under
that Act limiting the statement of reasons; and
(c) The right to natural justice affirmed in s 27 of the Bill of Rights
and found in the ICCPR would provide procedural protection
under s
72.
[224] The decision of the Supreme Court to read in these procedural
requirements is all the more important, given that the provision
being
interpreted applies to circumstances where individuals have been certified as
threats to national security, not mere overstayers.
There is every reason to
imply similar elements into s 54, in cases where fundamental human rights are at
stake, such as the right
to life and the right to freedom from
torture.
[225] The need to read in procedural steps and considerations is
strengthened in a case where children are involved. The special
protection of
children, which permeates UNCROC, the whole of our domestic law and the
fundamental value structure of New Zealand
society, indicates that full effect
to their rights ought to be given, including their interests in maintaining a
united family.
Where the interests of New Zealand citizen children are
involved, the considerations must take on even greater importance.
[226] In my view, these considerations must be read into the s 54 stage rather than at the s 130 or s 58 stages because the statute explicitly provides that there is no duty to consider or give reasons at those latter stages. However, I consider that the restrictions in s 58(5) apply only if all humanitarian considerations have been
properly taken into account at the s 54 stage. If the assessment was not
able to be carried out at the s 54 stage, then the s 58
stage assessment must be
treated as effectively a delayed s 54 assessment and thus not subject to the s
58(5) restrictions.
[227] If I am correct in saying that the humanitarian interview
procedures (or something similar) are required at the removal
stage, then they
are reviewable. As stated in De Smith, it is the constitutional
“function of the judiciary to determine the lawfulness of the acts and
decisions and orders of public
authorities exercising public functions, and to
afford protection to the rights of the citizen” – see at [4-016].
Merely
because an individual is an overstayer does not mean that recourse to the
courts is forfeited.
[228] Even if I am wrong and the humanitarian interview procedures,
including the giving of reasons, is purely voluntary, I agree
with Hammond and
Wilson JJ that this does not exclude review. As De Smith says at
[3-026]:
Informal action
First, there are situations where a public authority seeks to deal with a
problem by informal action outside the expected statutory
procedures or in the
absence of a statutory regime. It is submitted that where a public
authority takes such action to further
its public functions this should, in
principle, be reviewable.
[229] For the avoidance of doubt, this is not to be taken as agreement with
the form of order for reconsideration in the case of
the Ye children as set out
in Hammond and Wilson JJ’s judgment – see above at [414]. The
order states that the decision
is reviewable by the Immigration Service only if
it sees fit. If there has been error in a purely voluntary situation, then an
order
such as is made in the present case would allow that error to be
perpetuated. That is tantamount to excluding review.
Specific issues in these appeals
[230] I now turn to the specific issues in these appeals, starting with the issues common to both families and then those relating solely to the Ye children. I concentrate on the most recent decision of the Service even though in both cases there has been earlier interaction with the Service and the Minister of Immigration and, in the case of Mrs Qiu, with the RRA and the High Court. I mention any earlier
decisions and communication only to the extent that matters were dealt with
in those earlier decisions that are not referred to or
not dealt with adequately
in the most recent decision.
Basis of removal decision for Ms Ding
[231] On 23 August 2005, Ms Ding was served with a further removal order
(the first removal order having been served on 11 June
2004). She was taken
into custody. The same day she underwent a third humanitarian interview. In
that interview she expressed
concern as to how she and her three children would
survive financially in China. She mentioned in particular difficulties with
medical and education services for her children, given that they are not
citizens of China.
[232] The interview was followed by a decision, either taken immediately or
on
31 August 2005, not to cancel the removal order. On 31 August 2005 Mr Zhou,
the immigration officer assigned to Ms Ding’s case
set out his reasons for
his decision in the following terms:
I have considered the interests of the 3 NZ born children. I understand that
Ms Ding may face financial difficulties with the
schooling and any
hospitalisation of the 3 NZ born children.
I have also considered that Ms Ding has no family support in NZ. Her
husband, mother, 2 additional children, 3 brothers & 3
sisters are currently
living in China. Ms Ding and the 3 NZ born children will have the support of
the family members in China.
The 3 NZ born children all speak
Cantonese.
[233] He goes on to say that Ms Ding will have limited ability to support
herself and her three New Zealand born children in New
Zealand. He posits that
she would no doubt have to rely on a benefit eventually. Mr Zhou also says
that he has considered the
recent submission in the form of the psychiatric
report from Dr F, which says that Ms Ding is suffering from a depressive
disorder
and that she had suffered domestic violence, and sexual and emotional
abuse at the hands of her husband. This report is discussed
in more detail at
[279] - [280] below.
[234] Mr Zhou states that these claims (I assume he means the violence claims given Mr Zhou’s first hand knowledge of Ms Ding’s suicide attempt – see at [277]
below) are recent and have never been put in submissions before, including in
the six representations to the Minister of Immigration.
He states that, beside
the fact that there is no document or other evidence that suggests she suffered
abuse at the hands of her
husband, Ms Ding could call on the protection of the
Chinese authorities once back in China should her husband become
abusive.
[235] Mr Zhou then notes that he has considered the right of the New
Zealand government to determine who should remain within its
borders including
the right to expel persons not lawfully in New Zealand. He finishes
stating:
I have carefully weighed the competing matters set out above and I believe
that Ms Ding should be returned to China and that it would
be of the best
interests of the 3 NZ born children to return to China with their mother and
join their father and the rest of the
family.
Basis of removal decision for Mr and Mrs Qiu
[236] As noted above at [9], on 14 June 2005 Mr and Mrs Qiu were both
served with a removal order. The day after Mr Qiu was served
with the removal
order, a humanitarian interview was carried out (15 June 2005). There has as
yet been no humanitarian interview
of Mrs Qiu.
[237] In his humanitarian interview, Mr Qiu stated that he was afraid of
taking his two New Zealand born children back to China
because of the one-child
policy. He was also concerned about his children’s future as they would
not be able to attend school
in China and he and Mrs Qiu would not be able to
find employment.
[238] At stage three of the humanitarian interview, Mr Wang, the
immigration officer in charge of the Qius’ applications,
reached the
conclusion that there were no compelling reasons why a custodial removal
of Mr Qiu should not take place.
Mr Wang deposed on 23 June 2005 that, in
making his decision whether to set aside Mr Qiu’s removal order, he
took into
account New Zealand’s international obligations under the
ICCPR, its optional protocol, UNCROC and the interests of Mr
Qiu’s
children as a primary consideration. He concluded:
I took into account the young age of Mr Qiu’s children and the fact that the language they speak at home is Mandarin. Indeed, even though he has been
in New Zealand for over 8 years, Mr Qiu still requires a Mandarin
interpreter. I also took into account the fact that
all of Mr Qiu’s
extended family reside in China – both of his parents, 2 brothers and 1
sister.
I also considered the public interest factors set out [in the humanitarian
questionnaire]. Particularly important, in my view was
the fact that Mr Qiu had
been unlawfully in New Zealand for almost 5 years and that he had previously
been given an opportunity
to leave New Zealand voluntarily which he had
not taken up.
ISSUES COMMON TO BOTH FAMILIES
The children’s right to be heard
Submissions
[239] It was submitted by the appellants that, despite the relevant
immigration officers knowing that the children were New Zealand
citizens, there
was no attempt in the present case to afford the children a reasonable
opportunity to express their views. Nowhere
does the evidence show that their
views, on either the removal of their parent(s) or potentially their own
de facto removal
were obtained even indirectly from their parents. Any
views sought were those of the interviewee and not the children. Further,
the
questions asked did not focus on the children’s current situation in New
Zealand or likely future situation in China.
[240] The Crown submitted that none of the children in these proceedings
have any real knowledge of circumstances in China and that
they are too young to
hold an informed view. No weight therefore could be accorded to their views.
The Crown argued further that
Ms Ding and Mr Qiu were given the opportunity to
provide all relevant information and were asked specifically if they had
anything
to add.
Were the appellants heard?
[241] I accept the appellants’ submission that the humanitarian questionnaires did not contain any questions directed at ascertaining the views of the children even indirectly. Most of the children are clearly old enough to hold an independent view,
as shown by evidence before the High Court from two psychologists, Ms M (who
assessed the Qiu children) and Mr S (who assessed the
Ye children). Further,
the children were clearly qualified to express their views with regard to their
current situation in New
Zealand.
[242] It is true that the children have not been to China but that does not
mean that the children’s views on this should
not have been ascertained.
Had those views been ascertained, it would have been permissible for the
immigration officers to take
into account that the children’s views
relating to life in China would be held largely in ignorance of the situation
in China
and that they might be influenced by their parents. The
children’s experience of living in New Zealand, on the other
hand, is
based on first hand knowledge and therefore their views relating to New Zealand
cannot be similarly discounted.
Was proper information on the children’s situation
obtained?
[243] I also accept the appellants’ submission that
there was no proper ascertainment, from the perspective
of the
children, of the children’s current situation in New Zealand and their
likely situation in China. It is true
that the officers involved gave Ms
Ding and Mr Qiu the opportunity to add further information but this was
not specifically
directed to ascertaining the children’s
situation.
[244] Taking the Ye children first, there was no proper concentration on
what they would lose if they moved to China and what detriments
they might face.
The extent of the financial, health, educational and social detriment was not
assessed. Furthermore, since Mr Zhou
had made no enquiries and accessed no
information at all about the circumstances of the children in New
Zealand, I accept
the Ye children’s submission that he had no factual
basis for saying that the children would be better off going to China
rather
than remaining in a country in which they had spent their whole lives and in
which they were well settled.
[245] Further, Mr Zhou assumed that Ms Ding’s family in China would support her without ascertaining the family’s financial situation. The humanitarian questionnaire
contained the question “[w]here will you live in your home country and
how will you support yourself” to which Ms Ding
responded “I will
live with my mother. I don’t know how will I support myself”. This
ought to have triggered
questions from Mr Zhou relating to the Chinese
family’s income and resources. Mr Zhou would not have been obliged to
accept
Ms Ding’s answer to these questions but they ought to have been
asked.
[246] In addition, as discussed in more detail below at [277] - [282], Ms
Ding was in a state of depression at the time of the interview,
which should
have led to greater care on Mr Zhou’s part in his information gathering
role. I also note that Ms Ding’s
role as representative of her children
was not explained to her.
[247] Similarly, in relation to the Qiu children, there is no indication
that Mr Wang, the officer involved in the Qiu decision,
explained the role of
representative to Mr Qiu. Nor did Mr Wang, it appears, make proper enquiries
into the Qiu children’s
circumstances or their possible future in New
Zealand or China. He makes cursory reference to the young age of the children.
Most
answers Mr Wang has recorded to the questions at stage three of the
humanitarian questionnaire consist of no more than one word answers.
In
response to the questions whether the interviewee’s children are New
Zealand citizens or residents and whether it is reasonable
to expect a New
Zealand citizen child to live in the interviewee’s home country, Mr Wang
merely wrote “children are NZ
citizens”, without any assessment of
possible detriments of the children’s relocation to China. In response
to the
assessment question asking what the effect would be on the children if
the children did not accompany the parent to China, Mr Wang
merely stated
“separation”. In the section entitled “[a]ny other compelling
reasons” Mr Wang wrote “no”.
[248] A further issue arises in relation to the Qiu children. There was no separate inquiry into or consideration as to the effect on the children of any removal of their father, in circumstances where there was no decision yet made as to the other parent and therefore uncertainty as to the ultimate living arrangements of the children. The Qiu children submitted that it may have been in their best interests that any decision in respect of Mr Qiu awaited the outcome of the humanitarian interview of Mrs Qiu. There is some force in that submission, although there is no reason to suppose on
current information that there is anything in the situation of Mrs Qiu that
would differentiate her situation from that of her husband.
Language
[249] The Ye children all speak Cantonese. The official language in China
is Mandarin and schooling is in that language –
see Law of the People's
Republic of China on the Standard Spoken and Written Chinese Language 2000
(Order of the President No.37)
art 10. Modern Chinese consists of six to eight
distinct languages, including Mandarin and Yue, the latter is colloquially known
as Cantonese.
[250] The differences among the Chinese languages extend vastly beyond phonology and even vocabulary. There are also divergences in syntax and function words which make the languages as different from each other as English and Austrian German – see Windrow “From State to Nation: The Forging of the Han through Language Policy in the PRC and Taiwan” (2005) 37 N Y U J Int’l L & Pol
373 at 377 – 378. Thus the Ye children are, it seems, likely to be at
a disadvantage in schooling because they do not speak
Mandarin. Obviously, the
older a child is, the more likely it is that a change in the language of their
schooling will affect their
educational development.
[251] Further, there was nothing to suggest that the children have been
taught to write in Chinese. This is a significant matter
about which inquiry
should have been made. If they have not been taught Chinese characters, this
should have been taken into account
in assessing the educational detriment that
could arise for these children in China.
[252] Although the Qiu children speak Mandarin, it is not clear if Alan is
able to read or write in Mandarin (Stanley is
not school age). The
same issue as to schooling difficulties in China might therefore arise for
Alan (although not as acutely
as for Willie and Candy, given they are
older).
[253] I also accept the appellants’ submission that it would be a disadvantage to all those who have started schooling in New Zealand (and perhaps even to Stanley) if
they are required to change schools and countries and receive schooling in
another language in another cultural and educational environment.
They are used
to being schooled in English in the New Zealand environment. This was a
relevant matter that should have received
consideration.
[254] I am not of course suggesting that these matters would necessarily be
determinative. There are many instances of immigrant
children adapting very
successfully to the different language and culture in schooling in New Zealand.
Nevertheless, the changes
in language and schooling that children whose parents
are subject to removal might face do remain a relevant and weighty consideration
– see Winata where it was held that since the child had lived 13
years in the country, further factors justifying removal of the child’s
parents were required (above at [121]).
[255] I accept that Mr Wang’s reference to the young age of the Qiu
children might have been a (very) shorthand way of saying
that he had taken this
factor into account and that he considered that they would adapt to schooling in
China. I also accept that
the situation of Alan had been taken account of in
the RRA decision but that decision was some time ago and he was much older at
the time of Mr Wang’s decision.
Status of Ye and Qiu children as “black children” in
China
[256] Both the Ye children and the Qiu children have siblings in China. Mr
Ye and
Ms Ding have two older children who are still in China, a son, Jia Hao Ye,
born on
26 February 1991 and a daughter, Qiao Xian Ye, born on 30 November 1995.
They live with Mr Ye’s mother. Mr and Mrs Qiu also
have two other
children in China. Those children were born in 1992 and 1994
respectively.
[257] All of the appellants were born in breach of China’s “one-child” policy and are thus hei haizi or “black children”. The appellants argue that the consequences of the one-child policy for the children ought to have been taken into account as this will affect the Ye and Qiu children’s ability to access welfare, education and health services in China.
[258] The seminal refugee case in New Zealand on the topic of “black
children” accepted that there might be discrimination
against those
breaching the one-child policy but concluded that this was not for a Convention
reason – see Refugee Appeal No. 3/91 20 October 1992. The fact
that discrimination based on status as a “black child” may not
constitute a Refugee Convention
reason does not mean, however, that any
disadvantages are not relevant to immigration decisions generally – see
Convention
relating to the Status of Refugees (1951) 189 UNTS 150.
[259] Refugee Appeal No. 3/91 noted that compulsion to submit to
abortion or sterilisation does occur, although it said that the Government of
China does not condone
this. It also noted that disciplinary measures to comply
with the one-child family policy can be extreme, ranging from stiff fines
to
loss of employment. The views expressed contrast with those referred to
in Qiong at [41] – [43], that a softening of the one-child
policy has occurred recently. However, the information relied on in that
case
was from the Guardian Weekly newspaper, which would not
necessarily be an authoritative source – see Qiong at
[42].
[260] Other jurisdictions have recognised that “black children” may be disadvantaged in China. See Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 at [31] - [38] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and at [58] per Kirby J and Cheung v Canada (Minister of Employment and Immigration) (1993) 102 DLR (4th) 214 at 222 (FCA). These cases have recognised that such children may be part of a social group for the purposes of the Refugee Convention. See also Feller, Turk and Nicholson Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection
(2003) at 57.
[261] In the United States, the concentration has been on the parents rather than the children. The definition of refugee has been expressly broadened to include those forced to undergo abortion or sterilisation due to their government’s population control scheme – Illegal Immigration Reform and Immigration Responsibility Act
1996 8 USC § 1101(a)(42)(B), Corpus Juris Secundum vol 3A § 966. The situation of the children has been considered in some cases but with varying results – see Lin v Ashcroft, [2004] USCA9 498; 377 F 3d 1014 at 1023 and 1029 (9th Cir, 2004), Zhang v Gonzales, 408 F
3d 1239 at 1246 - 1247 (9th Cir, 2005), and Wang v
Gonzales, [2005] USCA3 80; 405 F 3d 134 at 144 (3rd Cir, 2005).
[262] I also note that enforcement techniques do vary widely over China, especially because of the lack of a national law regarding enforcement – see Sicard “Section
601 of IIRIRA: A Long Road to a Resolution of United States Asylum Policy
Regarding Coercive Methods of Population Control”
(2000) 14 Geo Immigr L J
927 at 929. Thus the issues to be faced may vary depending on the region in
China.
[263] I also refer to the following reports and articles on the one-child policy: Immigration and Refugee Board of Canada “China Treatment of ‘illegal’ or ‘black’ children born outside the one-child family planning policy: Country of Origin Research” (26 June 2007) <http://www.irb-cisr.gc.ca> (last accessed 17 July 2008); Austrian Centre for Country of Origin and Asylum Research and Documentation
(ACCORD) China: 10th European Country of Origin Information
Seminar Budapest
(2005)
<http://www.unhcr.org>
(last
accessed 17 July 2008); Skalla “China’s One- Child Policy: Illegal
Children and the Family Planning Law”
(2004) 30(1) Brook J Int’l L
329; and Mathew “Conformity or Persecution: China’s One Child Policy
and Refugee Status”
[2000] UNSWLawJl 56; (2000) 23(3) UNSWLJ 103 at 107.
[264] Since the one-child policy has been accepted in other jurisdictions
as leading to possible serious detriment for children,
it should, in my view,
have received explicit consideration. The questions in the humanitarian
questionnaire merely gave space for
a four line answer to ascertain the views of
the parents as to their concerns for the children if they were to accompany them
back
to China. In the case of Ms Ding, her answers as to difficulties in
medical care and education did not allude specifically to the
one-child policy,
although it had been mentioned in earlier submissions on Ms Ding’s behalf.
Mr Qiu did mention specifically
the one-child policy and his concerns as to the
effect this would have on the children.
[265] In his decision on Ms Ding, although the immigration officer, Mr Zhou, referred to “financial difficulties with the schooling and any hospitalisation”, the effects of the one-child policy were never specifically mentioned or considered in relation to the specific possible effects on the Ye children. Ordinarily, vague
indications of financial difficulties, without any further information, would
not be sufficient to trigger concern – see the
second appendix in Rajan
at [4]. However, in this case the children’s status as
“black children” might well give credence to
Ms Ding’s
claims. Information on the status of “black children” is readily
accessible in the public domain and
there is likely to be specialist information
on that policy held by the Service. In accordance with the principles
discussed
above at [194] - [201], it should therefore have been considered by
Mr Zhou.
[266] It is difficult to see how Mr Zhou could rationally have concluded
that the children would be better off in China without
having decided that their
status as “black children” would not affect their access to
education and health services.
If he had decided that there were no issues with
the children’s status, then one would have expected at least brief reasons
for coming to that conclusion, particularly as the human rights of New Zealand
citizen children were potentially at stake.
[267] The need to give reasons is all the more important where fundamental
human rights are at stake. Mr Zhou made no reference
to the children’s
status as “black children” at all. The inevitable inference
therefore is that this clearly relevant
factor was not taken into
account.
[268] In terms of the Qiu children, Mr Wang made no mention of the
one-child policy, despite this having been put to him by Mr Qiu.
There was no
discussion of why this point was not of concern. The matter does not seem to
have been earlier considered from the
viewpoint of Stanley and Alan. The
effect of the one-child policy in China on Mr Qiu had been earlier assessed in
relation to the
children in China but not in relation to Stanley and Alan. The
RRA decision in relation to Mrs Qiu did not mention the point, because
Stanley
had not been born. Mrs Qiu does not seem to have referred to the two children
in China as the RRA talks about the children
in China being from Mr Qiu’s
previous marriage.
[269] Nothing in the above discussion is to be taken as a comment on what should or should not be the result of any reconsideration of this issue.
The appellants’ New Zealand citizenship
Submissions
[270] The next submission made was that the appellants’ New Zealand
citizenship was not properly taken into account.
Assessment
[271] In this case, as a function of their New Zealand citizenship, the
appellants are entitled to remain in New Zealand. They
are not
“overstayers”. Deferral of their citizenship rights is an
important loss to them and to New Zealand –
see above at [109]. This is a
matter that should have been separately taken into account and
weighed.
[272] While the New Zealand citizenship of both the Ye and the Qiu children
was mentioned, there was no real attempt to compare
the life they would have in
New Zealand with that in China and no proper recognition of the importance of
their citizenship rights.
In the case of the Qiu children in particular there
does not seem to have been any consideration of their citizenship in the final
decision at all. Mr Wang merely stated that the Qiu children are New Zealand
citizens with no consideration of what that citizenship
might mean. In my view,
this means that has been an error in the decision-making as citizenship has not
been properly treated as
a separate and important consideration.
[273] I accept the appellants’ submission that it is highly relevant that they have never been to China – so they are not being “returned” there, despite this terminology being used frequently by the immigration officers. Being sent to China involves losing many aspects of the only life they have known, including their sense of stability and their current identity as young Chinese New Zealanders. If it is true that they will face serious financial difficulties in China, then the children have little prospect of ever returning to New Zealand. This would impact on their identity and their material wellbeing throughout the balance of their lives and on their citizenship rights.
[274] One further issue relating to citizenship is whether the children
have to be Chinese citizens to access benefits that Chinese
citizens enjoy in
terms of education, health and welfare. It is unclear whether they would be
Chinese citizens by descent or whether
they would have to go through a
particular process of gaining citizenship. It is also not certain whether the
children would be permitted
to retain their New Zealand citizenship throughout
life and still enjoy the benefits of Chinese citizenship. I understand
that, as at 2005, art 31 of the People’s Republic of China Nationality Act
did not acknowledge dual citizenship – see
CRC Committee
“Consideration of Reports Submitted by States Parties under Article 44 of
the Convention Second periodic report
of States: China” (15 July
2005) CRC/C/83/Add.9 at [51]. There are reports of difficulties in receiving
education for
migrant children. Although there is legislation in place
stating that Chinese provincial governments have the responsibility
to provide
education to migrant children, little attention has been paid to this
legislation at local level – see Hannum and
Park Education and Reform
in China (2007) at 119.
ISSUES RELATING PRIMARILY TO THE YE CHILDREN
Ms Ding’s state of depression
Submissions
[275] The Ye children submit that Ms Ding’s state of depression was
not properly factored into the decision-making process.
They submit that Dr
F’s report, received before Mr Zhou recorded his final decision on
31 August 2005, raised serious
questions about Ms Ding’s mental health
against a background where Mr Zhou knew there had been a previous incident
involving
self-inflicted harm by Ms Ding at the immigration service
office.
[276] The Crown submits that this factor was adequately taken into account and that, in any event, Ms Ding was not psychiatrically unwell.
Evidence as to Ms Ding’s depression
[277] Ms Ding’s attempted suicide occurred on 24 November
2004. She had attended at the Immigration Service for
a humanitarian
interview, her second such interview. In the course of that interview, Ms Ding
cut her wrists with a carpet cutter
in the toilets. She was found and taken to
hospital, after one of the children told the receptionist that Ms Ding was
attempting
to kill herself. Ms Ding stated that she had been ordered by her
husband to commit suicide while in the custody of the New Zealand
Immigration
Services.
[278] Ms Ding’s psychological state has been the subject of several
reports. In an affidavit of 1 September 2005, the supervisor
of the social
worker assigned to the Ye children, notes that the Department investigated a
notification from the Immigration Service
when Ms Ding cut herself at the
Immigration Services offices. She states that it was believed that Ms Ding was
not suicidal at
the time of the investigation. Mental health services confirmed
that her actions were as a result of her husband’s removal
and her own
pending removal. The children were not believed to be at risk of physical
harm.
[279] On 4 August 2005 Ms Ding was assessed by Dr F. In his report, Dr F
gave his clinical opinion that Ms Ding was suffering from
a major depressive
disorder with a very real risk of suicide. He considered that it was likely
there was an element of post traumatic
stress disorder but further history was
required to substantiate this. In his opinion, any attempts by the Immigration
Service to
remove Ms Ding would exacerbate her condition and increase her risk
of suicide, particularly if this involved separating her from
her children. He
considered that Ms Ding’s clinical state had been caused primarily by
living in constant fear of being apprehended
by the authorities and being
forcibly removed to China and the harm this would cause to her and particularly
her children.
[280] Dr F recorded Ms Ding as asserting that she had been regularly assaulted by her husband in China when he was intoxicated. On settling in New Zealand she said she had been kept isolated from the rest of the Chinese community in New Zealand while her husband went out to work. She had never been taught to speak English or
acquire any basic money management skills. She reported that her
husband’s alcohol consumption worsened which led
to frequent assaults. On
one occasion she lost all her front teeth, requiring the placement of dentures.
The assaults included
sexual assaults and frequent emotional abuse. The
assaults also involved the children, particularly the eldest child,
Willie,
who was often assaulted around the head which frightened her. Ms Ding said that
she did not contact the police because she
was too afraid of her
husband.
[281] In a health and safety management plan made for Ms Ding while she was
in custody at Auckland Central Police Station on 23
August 2005, nine months
after the attempted suicide, it was recorded that, although Ms Ding was not
psychiatrically unwell, she
was acutely distressed and she remained at risk of
self harm.
[282] On 24 August 2005, there is a letter from a psychiatric nurse who
says that she had informally assessed Ms Ding at the request
of police and
counsel because of the concerns that she may be at risk of harming herself. She
said:
In the presence of counsel, Chinese interpreter and the writer, the defendant
responded minimally to the assessment. She appeared
depressed, expressing
shame, head bowed, little eye contact. The defendant was unable to give
reassurance for her safety. She
said that she did not want to go back to
China.
I will inform the medical unit at Women’s Remand Prison of her ongoing
potential for self harm.
I respectfully suggest that due legal process should continue.
Although there is no need for this service to be currently involved with this
client, forensic services are available to assist in
the future if this is
deemed necessary.
Assessment by the Service
[283] As noted above at [233], Mr Zhou said in his report of 31 August 2005 that he had taken Dr F’s report into consideration in his decision. There were two other references to Dr F’s report. The first was in a report dated 23 August 2005 regarding removal action written by Mr Maritz, another immigration officer who was a Service
Leader, under the heading “To Note”, it was stated that Ms Ding
may be suicidal and that “[t]his case may attract
media attention due to
her suicidal tendency ...”.
[284] The second was on 24 August 2005. Mr Zhou, the immigration
officer dealing with Ms Ding’s case, forwarded
a summary of facts to the
private secretary of the Associate Minister of Immigration via email
indicating his intention
to proceed with Ms Ding’s removal. Mr
Zhou advises that a flight booking for Ms Ding (alone) had been made,
departing
on 1 September 2005. He advised that he had taken a psychiatric
report on Ms Ding “into consideration in my decision-
making”. Mr Zhou also noted that he had requested that two New Zealand
police officers escort Ms Ding back to China due to
Ms Ding’s previous
suicide attempt.
Was Ms Ding’s depression taken into account?
[285] I deal first with the Crown submission that Ms Ding was not
psychiatrically unwell. In my view, while there appears some
disagreement as to
whether Ms Ding was psychiatrically unwell (see above contrast: [279] with
[281]), there is agreement as to her
depressed state and the potential suicide
risk – see at [279], [281] and [282]. Dr F appears to be the only person
to have
undertaken a full evaluation of Ms Ding’s state and it was his
opinion that she was suffering from a major depressive disorder.
[286] The issue is whether this factor was adequately taken into account.
First, although Mr Zhou said he had considered Ms Ding’s
depressive state
and risk of self-harm, Mr Zhou did not take into account that, if Ms Ding
committed suicide, this would have extremely
serious effects on her New Zealand
citizen children in that they would be permanently deprived of a parent and in
particular the
parent on whom they have the greatest physical and emotional
dependence.
[287] Secondly, there was no consideration by Mr Maritz, in his
report of
23 August 2005, of the fact that removal could deprive Ms Ding of her life, albeit by her own hand. It appears that his concern at that stage was in relation to the likely publicity involved – see above at [283].
[288] Thirdly, while sending a police escort with Ms Ding was a
sensible arrangement to keep her safe on the flight,
it is difficult
to see why Mr Zhou organised this and yet failed to try to make some
arrangements for the adequate care for
Ms Ding on arrival in China in order to
try and ensure she did not take her own life on her return.
[289] I thus accept the Ye children’s submission that Ms Ding’s
suicide risk was highly relevant and not properly taken
into account, both with
regard to its possible effect on them and the potential risk to Ms Ding’s
life.
Mr Ye’s alleged violent behaviour
[290] Mr Zhou discounted the alleged violent behaviour of Mr Ye on the
basis that this had not been mentioned by Ms Ding prior to
Mr Ye’s
removal. He considered that in any event this would be appropriately dealt with
by the Chinese authorities –
see above at [234].
Contentions of the parties
[291] The Ye children and Ms Ding submit that it is understandable (given
the history of violence) that Mr Ye’s violent behaviour
was not mentioned
while Mr Ye was still in the country. They submitted that it should not have
been discounted by Mr Zhou and that
there would not be proper protection by the
authorities in China.
Should it have been discounted?
[292] It was open to Mr Zhou, on the information then available to him, to find Ms Ding’s claims of family violence to be unsustained. He was also entitled to assume that Ms Ding could seek protection from the Chinese authorities, in the absence of any evidence before him that this was not the case. When the matter is reconsidered, however, all the material now available (and any further material placed in front of the Service) will need to be considered, including Ms Ding’s explanation for not raising the matter earlier.
Likelihood of Ye children remaining in New Zealand
Submissions
[293] The Ye children and Ms Ding submit that, by the time Mr Zhou made his
decision, he knew that Ms Ding did not intend to take
the children with her to
China. He also knew that the Immigration Service had no authority to require the
children to go to China
and he had no other basis to think that they would be
going to live there in the foreseeable future. It was thus not possible for
Mr
Zhou to justify his decision by saying that it would be in the best interests of
the three New Zealand children to return to China,
a country to which they had
never been.
Children staying or going?
[294] There is force in these submissions. In this case, Ms Ding had been
saying for some time that she could not take her children
to China with her.
Efforts were being made to persuade her to take the children but, although this
could have been mere brinkmanship,
she appeared to maintain her position even
when she appeared in imminent danger of removal. Further, if Ms Ding was
prepared to
leave the children behind, this might add some credence to her
concerns that she would not be able to survive in China with her children
and
possibly also to her concerns about the children’s father.
[295] I consider, however, that whether or not a citizen child will
accompany his or her parent is of limited significance to any
decision-making.
As stated above at [103] and [108], the citizen child faced with removal of a
parent is faced with either relinquishing
or postponing rights of residence and
citizenship or enjoying them without the parent, neither alternative being
satisfactory. This
choice is not a free choice of the parents but one that is a
direct result of the removal decision. The detriment associated with
each
alternative should be assessed.
[296] Nevertheless, I accept the Ye children’s submission that the best interests of the children should have been assessed on the basis of the correct factual situation.
Even if the children were to remain in New Zealand, however, their likely
situation in China should still have been explored as it
may have led to the
decision to leave the children behind. Further, Ms Ding could have changed her
mind and taken the children with
her.
Wardship
[297] The issue may now, however, be further complicated with regard to the Ye children. The current legal status of the Ye children is that, as from 1 September
2005 pursuant to an order made by the Family Court at Auckland under s 33 of
the CCA, they are under the guardianship of the Family
Court. On the same date
as the order was made on 1 September 2005, the Family Court directed that the
Chief Executive be appointed
as the agent of the Court and counsel for the
children was also appointed. The proceedings in the Family Court are
adjourned, awaiting
a determination as to whether Mrs Ding is permitted to
remain in New Zealand. The children are currently in her care.
[298] The effect of a wardship order is to place all guardianship
functions in relation to the child in the hands of
the Court and to place the
child under the Court’s protection – see Inglis New Zealand
Family Law in the 21st Century (2007) at [16.5.1]. This
includes the power to decide whether the ward leaves the jurisdiction (even for
a holiday) – see
Family Law Service at [6.302]; J v T [2005]
NZFLR 379 at [26] (FC); Inglis at [16.4.2] and s 16(2)(b) of the
CCA.
[299] In making any relocation decisions, the Court must take into account the welfare and best interests of the child as the first and paramount consideration – see Stadniczenko v Stadniczenko [1995] NZFLR 493 at 500 (CA) and D v S [2003] NZFLR 81 at [17] (CA). Therefore, even if Ms Ding did change her mind and decided to take the children with her to China, it is not predetermined that the Court would allow the children to go with her. The Family Court would have to be satisfied as to the conditions in China and that living in China would be in the children’s best interests.
[300] As stated by Quilliam J in Re T [1982] 2 NZLR 662 at 664 (HC),
there can be no doubt that, in a conflict between the natural guardian and the
Court itself as the guardian under a
wardship order, the Court’s rights
would prevail – see also Family Law Service at [6.301]. (This was
cited with approval in Re RSR [2005] NZFLR 228 at [38] (HC).) The
process the Court would wish to undertake to ascertain the children’s
best interests would no doubt
be similar to that described below at
[347] - [350].
Remedy
[301] There is no doubt that Ms Ding and Mr and Mrs Qiu have had their
cases considered numerous times. It is understandable that
the Crown feels a
certain exasperation with their continued efforts for reassessment and with
their evasion of immigration authorities.
It is easy to speak pejoratively of
their actions and, particularly in the case of the Qius, their economical
approach to truth.
Looked at in another light, however, they can be seen as
doing what every parent tries to do: the best for their family. This is
not to
condone their actions: it merely explains them.
[302] What must not be lost sight of, however, is that the
children are not responsible for the actions of their parents
and it is with
the children’s best interests that the Service and the courts must concern
themselves, particularly in light
of their New Zealand citizenship. It must be
a primary role of the New Zealand executive and the courts to protect the rights
of
New Zealand citizens. I have identified some failings in the removal process
as regards their respective children. The question
now is one of remedy. I
start by discussing the standard of review and then examine the case for each
set of appellants in turn.
Standard of review
[303] As this is a case involving the fundamental human rights of children, it is one where the courts should apply the standard of “anxious scrutiny” – see R v Secretary of State for the Home Department, Ex parte Bugdaycay [1986] UKHL 3; [1987] AC 514 at 531 (HL) per Lord Bridge; R (Mahmood) v Secretary of State for the Home Department [2001]
1 WLR 840 at [18] (CA) and Pharmaceutical Management Agency Ltd v Roussel
Uclaf Australia Pty Ltd [1998] NZAR 58 at 66 (CA). See also
Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17; [2005] 2 NZLR 597 (SC)
at [54] per Keith J, and [116] per Blanchard J (with Richardson J in agreement
at [179]) (SC) for support for the concept of variable standards
of
review.
[304] Professor Taggart in his article “Proportionality, deference,
Wednesbury” referred to at [85] above, has suggested that a full
proportionality review ought to replace the Wednesbury unreasonableness
standard where fundamental rights and values are involved. See also Joseph at
[21.7.5]; R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2
AC 532 (HL) and R v Ministry of Defence Ex parte Smith [1995] EWCA Civ 22; [1996] QB 517 at
554 (CA) per Sir Thomas Bingham MR. The UNCROC standard clearly qualifies as
relating to fundamental human rights and is embedded
in the values of a
civilised society – see below at [312] - [315].
[305] It must also be borne in mind that, since the standard in UNCROC has
built in weight (“a primary consideration”), any decisions
which clearly do not accord the proper weight to the best interests of any child
must be reviewable
as errors of law. Given that the weight is built in, a
standard administrative law inquiry may thus in any event not be
sufficient.
Position of the Ye children
[306] In the case of the Ye children, it is not necessary to rely on any
heightened scrutiny or even on the fact that the UNCROC
standard has weight
built in. Nor is it necessary to come to any view on the proportionality test.
The decision in relation to
Ms Ding and her children can be impugned on normal
administrative law grounds for failure to take into account relevant
considerations
and asking and answering the wrong question.
[307] The relevant factors not taken into account, include Ms Ding's suicide risk and therefore the possibility that the children might be deprived totally of their mother. That the Ye children do not speak or write Mandarin and the length of time they have lived in New Zealand were also not considered.
[308] The extent of any possible disadvantages to the children as a
consequence of their status as “black children”
was also not
considered, including the possibility that their fundamental rights to education
and healthcare might be compromised
if they were to be taken to China. The
status as “black children” has been recognised in other
jurisdictions as being
capable of sustaining a refugee claim. It is
inconceivable that New Zealand citizen children might be afforded less
protection potentially
than non-New Zealand citizens were New Zealand
jurisprudence to follow that overseas precedent in a future case.
[309] The children’s views were not sought. This may not have led to
the appeal being allowed if Mr Zhou had taken into account
all relevant factors
and if he had had adequate information on the children’s current and
likely future situation in New Zealand.
He did not. Further, the situation was
one that called for particular care in the information gathering role, given Ms
Ding’s
distressed state.
[310] With the Ye children there is a further issue. Mr Zhou attempted to
assess where the best interests of the children lay (ie
whether or not the
children ought to stay in New Zealand or go to China), an assessment that he was
not qualified to make. In any
event, he did not have adequate information upon
which to make the assessment. Further, the assessment was made on the wrong
factual
basis. There was every indication that the Ye children were not going
to accompany their mother to China.
[311] There is now an added complication. Given their status as wards of court, Ms Ding is now unlikely to be able to take the children (at least immediately), even if she wanted to. This means that any decision to remove Ms Ding now will involve separating the children from the parent they most identify with and about whom there are no care and protection concerns; leaving the children in the care of strangers. As I said above at [299], the Family Court could not responsibly discharge the order unless it was satisfied that it was in the best interests of the children to do so. This would necessarily involve an assessment of the possible effects of their status as “black children” in China, as well as an assessment of the arrangements in China for their support.
[312] Hammond and Wilson JJ say in their judgment that the fact that
removal of Ms Ding would result in the separation of the children
from their
mother would not suffice in itself to stop Ms Ding’s removal – see
below at [409]. For myself, I have doubts
that merely upholding immigration
policy could ever be proportionate to breaking up a family, without there being
other public interest
factors involved, such as may arise in deportation
cases or those involving revocation of permits. Separating children
from
their parents, absent care and protection concerns, goes against the family
values that are so ingrained in New Zealand
and which are reflected in
domestic legislation such as CYPFA and CCA – see above at
[103].
[313] Hammond and Wilson JJ state that children deprived of parents through
death or other human circumstance often show great resilience
and wonderful
development as human beings. This may be true, but equally there are many
instances of children who do not survive
such events very well. Further,
deprivation of parents through death is unavoidable. Removal leads to
deprivation of a parent through
the actions of the State and not
fate.
[314] Murphy J’s views in Pochi, expressed prior to the
signing of UNCROC, support the view that breaking up a family due to deportation
(or effectively forcing
the citizen spouse or child to leave the country
with the deported spouse), is inhumane and uncivilised. Murphy J likened
it
to the separation of families when members were taken as slaves. In
Teoh, Gaudron J’s approach was comparable – see at 304
– 305. Similarly in the New Zealand case of Wolf, Wild J reviewed
a decision of the Immigration Service to deport Mr Wolf who had two New Zealand
citizen children. Wild J held (at
[65]) that, because the decision involved the
break up of the family coupled with New Zealand’s obligations under
international
treaties, the court was obliged to scrutinise the decision
carefully and closely.
[315] Further in the recent House of Lords case E B (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2008] 3 WLR 178 (HL), in an appeal against an order for removal based on article 8 of the ECHR, Lord Bingham commented at [12] (with the other Lords in agreement) that it would rarely be proportionate to uphold an order for removal of a spouse if the effect of the order is to sever a genuine and subsisting relationship between parent and child – see Taggart at 35 - 36.
Position of the Qiu children
[316] While the case with regard to the Qiu children is not as strong as
that of the Ye children, nevertheless the decision to remove
Mr Qiu can also be
impugned on ordinary administrative law grounds of failing to consider relevant
considerations. The Qiu children’s
citizenship was mentioned but there was
no attempt to assess that as a separate consideration. Further, the Qiu
children’s
views were not sought and there was inadequate information as
to their situation in New Zealand and likely situation in China. I
do not need
to decide if those factors would have led to the appeal being allowed because
the Qiu children’s status as “black
children” raised a real
issue as to the possible detriment to them of Mr Qiu’s removal. Their
status as “black
children” received no consideration at
all.
Result I would have arrived at
[317] For the above reasons, I would have allowed the appeal of both the Ye
and the Qiu children and remitted the matter for reconsideration
in light of my
judgment. The appellants’ argument based on s 4 of the CCA seeking
affirmative relief has failed. Given that
the decisions have been invalidated
on normal administrative law grounds, the normal remedy (that the matter be
remitted to the Immigration
Service to be reconsidered) applies.
CROWN’S CROSS-APPEAL
[318] The Crown’s appeal and cross-appeal covers the following matters: (a) The judgment wrongly joined the children as parties;
(b) The children should have had litigation guardians;
(c) The principle of legality and the parens patriae jurisdiction was invoked in a manner that is inconsistent with statute and unjustified on the facts;
(d) There should not have been court appointed counsel for the
children;
(e) Irrelevant evidence was admitted, which post-dated the decisions
challenged by application for judicial review;
(f) The declarations that the children were not to be removed
from New Zealand, except by decision of the parents,
were misconceived and
premature and were based on the mistaken assumption that adoption of the
children outside New Zealand was imminent;
and
(g) The Qiu application for judicial review should not have been
moulded into the image of the Ding/Ye case where there were vital factual
differences; and
(h) The interim orders with regard to Ms Ding should not have
been made.
Were the children wrongly joined as parties?
Submissions
[319] The Crown submitted that the children were joined as
parties in circumstances where their interests were
properly advanced by an
adult parent with full capacity and about whom there was no care and protection
concern. The Crown argued
that the indirect effect on the children of the
decision not to cancel the removal order of a parent is insufficient to give
them
independent party status as there are no legal consequences for them. Any
practical consequences arise, in the Crown’s submission,
from the
decision of the child’s parents as to where the children should
live and are consequences which the parents
are legally entitled to bring about
irrespective of any state involvement.
[320] The Crown pointed out that the joining of the children is unnecessary because the children’s views can be made known through their parent or parents. It was also submitted that separate party status is contrary to the scheme of the Immigration Act
and could lead to a situation where the children seek to appeal or to review
a decision not to cancel a removal order of
his or her parents but
the parents themselves choose not to appeal (as in this case).
[321] The appellants argue that the Crown contentions are contrary to ss
4(3) and 6 of the CCA as well as UNCROC. In their submission,
the Crown
position also fails to give recognition to the children’s rights as New
Zealand citizens.
Discussion
[322] The Crown’s argument is akin to stating that the children should have no standing in judicial review proceedings. In New Zealand, a generous approach to standing prevails, which is said to be based on the constitutional principle that the courts must ensure that public bodies comply with the law – see Joseph at [26.6.3] and Environmental Defence Society Inc v South Pacific Aluminium Ltd (No 3) [1981]
1 NZLR 216 at 220 (CA). As a result of this generous approach, the question of standing is combined with the substantive issues as part of the judicial review discretion and standing decisions are made on the totality of the facts – see Joseph at [26.6.3(3)(a)] and Budget Rent A Car Ltd v Auckland Regional Authority [1985] 2
NZLR 414 at 419 (CA) per Cooke J.
[323] In terms of this case, one of the primary considerations in the removal decisions is the best interests of the children. The children stand to lose their primary caregiver(s) or will be subject to de facto removal from New Zealand even though they are New Zealand citizens. I have already disposed of the argument put forward by the Crown that the decision to take the children to China is a decision of the parents and not the State – see above at [103] - [104]. I accept that parents would legally be entitled to make a decision to leave their children in New Zealand if they voluntarily went overseas (provided proper care for those children was arranged) or they could legitimately decide that their children should accompany them overseas. However, in the case of immigration removals, neither of these options is the free choice of the parents.
[324] The children’s future is thus intimately bound up in the
decision of whether to remove the parent(s) in this case and
the decision-maker
is required to take into account their best interests. This means that standing
for judicial review cannot be
in question.
[325] I accept that in most cases it would be unnecessary to join the
children as parties as they will usually be aligned
with their parents,
although, given the approach to standing outlined above, if the children
desire to participate through a
litigation guardian, it may be difficult to
limit their involvement. Parties with the same interests are often named as
plaintiffs
in the same proceeding (although of course they are exposed to costs
orders).
[326] I do not accept the Crown submission that it is against the scheme of
the Immigration Act to join the children as parties.
I have held above that the
children’s views should be taken into account in any immigration decision,
albeit normally that
will be through their parents or another responsible adult.
However, the fact that their views can be sought through a parent or
representative does not mandate that they cannot be separate parties if they
wish. The children’s interests are directly
engaged in any decisions
relating to their parents.
[327] Nor do I see anything necessarily untoward in a situation where the
children might wish to appeal a decision even if the parents
do not. For
example, children could take more seriously than their parents the possible
deprivation of their citizenship rights
through the removal of their parents.
Of course, if the children did take this step, then they (through their
litigation guardian)
would be exposing themselves to costs orders in the normal
way.
[328] Even if I am wrong and normally children should not be joined as parties, this case involved an argument that was not frivolous – that the CCA had direct operation in the immigration context. The CCA quite clearly would give the children the right to be heard and joined to any proceedings. Even if it would be inappropriate to have children as parties as a general rule in immigration cases, it was not inappropriate in what was effectively a test case on the application of the CCA.
Should litigation guardians have been appointed?
[329] The Crown argues that, subject to some exceptions which do not apply
in this case, a minor must have a litigation guardian
as his or her
representative in any proceeding. They refer in this regard to rr 82 – 85
of the High Court Rules. The Crown
submits that none of the children
involved in this case have sufficient maturity to instruct
counsel.
[330] I agree that a litigation guardian should have been appointed in this
case. The fact that a litigation guardian was not appointed,
however, cannot,
in my view, undo the separate party status of the children and therefore does
not mean that the appeals must be
dismissed. Effectively the court appointed
lawyers in this case have made the decisions for the children in the litigation,
including
the decision to appeal. In doing so they have been acting in what
they consider to be the best interests of the children in the
way that a
litigation guardian would.
[331] It is true that the children will not be exposed to costs and that
would apply also to the lawyers acting on their behalf
and that this would
differ from the situation of a litigation guardian. However, as stated above,
this was in the nature of a test
case and that would have made costs orders
against these children and any litigation guardian inappropriate in any
event.
Was the parens patriae jurisdiction wrongly
invoked?
Submissions
[332] The Crown argues that the principle of legality and the parens patriae jurisdiction was wrongly invoked to justify the joinder of the children as separate parties.
Discussion
[333] There is force in the Crown’s submission. However, as noted
above at [322], I see the question as one of general standing
in judicial review
proceedings.
Should there have been court appointed counsel?
Submissions
[334] The Crown’s next submission is that, even if the children were
rightly given separate party status, there was no basis
for the involvement of
state funded and court appointed counsel to represent the children. The Crown
argues that there was no power
to appoint counsel to act for the children under
the CCA, the inherent jurisdiction, the parens patriae jurisdiction or
any other Act. Further, art 12 of UNCROC, if it does apply, does not require
the child to have separate representation
as there is no conflict of interest
between parent and child – see McGoldrick at 141.
[335] In addition, the Crown argues that there is a “public
purse” reason why appointment of counsel for children in
these appeals is
inconsistent with the Immigration Act as it involves the subversion of the legal
aid regime as it applies to immigration
litigation. Legal aid is unavailable
for persons unlawfully present in New Zealand and is currently available for
only limited
categories of immigration litigation, which are inapplicable in
this case.
Discussion
[336] I agree that the power to appoint counsel would not arise out of the CCA, the parens patriae jurisdiction or any other legislation. I see the counsel acting in this case as having been appointed as amicus curiae. As has been held by this Court in Solicitor-General v Miss Alice [2006] NZCA 301; [2007] 1 NZLR 655 at [17] – [18] (CA), there is nothing improper in amici taking a partisan role in litigation.
[337] The Crown points out that the High Court did not express the
appointments of Dr Harrison and Mr Mahon as appointments
of amicus
curiae. They are expressed as appointments as counsel for children. It
is whether there was power to appoint counsel that matters,
however, and not the
label that was put upon it.
[338] I agree that it would not normally be appropriate to appoint amici
to represent children in immigration matters for the “public
purse” reasons articulated by the Crown. This, however,
was a test case
on an argument that was by no means frivolous. Therefore it does not come
within the normal category of cases and
it was well within the discretion of the
High Court Judge to appoint counsel.
[339] Even where the children are not a party to the litigation and the
case is not a test case, however, it may be that, if there
is a conflict between
the interests of the parent and the child’s interests or other special
circumstances, consideration should
be given to appointing counsel to put
arguments for the child. As Baroness Hale said in Naidike at [68],
“[i]t is all too easy to lose sight of those rights and interests in
proceedings which are mainly concerned with the
rights and interests of
adults”. Although the appointment of a lawyer for the child is a difficult
issue that must depend on
the particular circumstances “[a]t the heart of
this analysis is whether, considering all the circumstances, those whose
interests
were affected had a meaningful opportunity to present their case fully
and fairly” – see the majority in Baker at [30].
[340] In the case of the Ye children, there may have been features of the
case (aside from it being a test case) that warranted
separate
representation (in particular Ms Ding’s depression).
Was irrelevant evidence admitted?
Submissions
[341] The next concern of the Crown is that the High Court allegedly wrongly considered a large amount of inadmissible evidence that post-dated the decision of
the immigration officer in each proceeding. This evidence includes
statements from court appointed counsel for the appellants, reports
filed by the
psychologists about the children, affidavit evidence of Ms Ding purporting to
resile from or add to responses in
her humanitarian interview and an
affidavit from a purported expert in the law in China.
[342] In the Crown’s submission, judicial review is concerned with
lawfulness of the process by which a challenged decision
was reached on the
basis of information held at the time and the reason given by Baragwanath J that
the information was relevant
to remedy is not, in the Crown’s submission,
sufficient to render it admissible.
Discussion
[343] The argument before the High Court was that the best interests of the
children are paramount and that the children had a right
under the CCA to be
heard. In these circumstances, it is unsurprising that the additional evidence
was considered possibly relevant.
In the normal course, such evidence would
only be admissible in exceptional circumstances.
[344] However, if there had been major changes in circumstances or highly relevant information not placed before the Service then, given the importance of the best interests of the child in the decision-making process for immigration matters, it may not be wrong to allow further evidence to be adduced, even in judicial review proceedings. It is pertinent to note that in order to make decisions based on the best interests of the child, the decision needs to be made on the best information available. This also tips the scales towards allowing further evidence in this particular case.
Was the declaration of Baragwanath J that the children should not be
removed from New Zealand necessary?
Crown submissions
[345] The Crown submits that Baragwanath J wrongly declared that the
appellants ought not to be removed from New Zealand except
by decision of their
parents. The Crown submits that the declaration was unnecessary as there is no
power to remove the children
from New Zealand. Baragwanath J made the order
because of a suggestion in an affidavit from the Children and Young Persons
Service
(discussed below at [349]) that the Ye children might be placed for
adoption in China.
[346] The Crown submits that the affidavit was simply an attempt to
describe possible outcomes that may or may not occur depending
upon what facts
and situations ultimately face social workers. Any contingent possibility of
adoption outside New Zealand in the
distant future would not be entertained
unless authorised by law or order made under the authority of the Family
Court.
Social worker’s affidavit
[347] The affidavit referred to above was sworn on 13 December 2005. This
outlined what steps might be taken should Ms Ding be
removed, leaving her
children behind without having made proper provision for their care. The social
worker said that the Children
and Young Persons Service would seek to obtain a
permanent rather than temporary solution for the children as soon as
possible.
[348] There would be an assessment of the children’s current circumstances and future living arrangements, taking into consideration the best interests of the children. Any assessment would consider the advantages and disadvantages of remaining in New Zealand and having stability in education, language and environment but being separated from immediate family, balanced against being placed with or having regular contact with their parents in another country. The
children’s wishes would be ascertained and taken into account,
depending upon their age and maturity. Psychological reports
would be sought if
necessary.
[349] To assist in determining if placement with the children’s
relatives in China would be in their best interests the Children
and Young
Persons Service would, through the Office of the Chief Social Worker, consult
with International Social Services in China,
a non-governmental organisation.
Any assessment would need to include further information about the siblings who
had been left in
China. If a decision was taken that it was in the best
interests of the children to live in China and extended family were unable
to
care for the children, consideration may be given to placing the children with
non-family caregivers in China, who would be assessed
by International Social
Services.
[350] On receipt of a favourable assessment, the Children and
Young Persons Service would then weigh the placement option
in this case in
China against any other New Zealand placement options. It would consider all
relevant factors and the principles
provided in ss 5, 6 and 13 of the CYPFA or
in ss 4 and 5 of the CCA depending upon which statute applied.
Declaration unnecessary
[351] I accept that the declaration was unnecessary. The Ye children are
under the wardship of the Family Court. That necessarily
has the effect that
the children cannot be removed from New Zealand without order of the Court
– see above at [298]. The Qiu
children have an absolute right to remain
in New Zealand under s 3 of the Immigration Act and could not be removed without
parental
consent.
Did the Judge wrongly mould the Qiu case into a mirror of the Ding
case?
Submissions
[352] The Crown next complained that Baragwanath J moulded the Qiu case into the image of the Ding case, although there were significant differences in fact and
differences in the manner of argument in the High Court between the two
cases. The Crown complained that the pleadings in the Qiu
case were never
formally amended to reflect the argument the Qiu children were invited to
present.
Discussion
[353] It is not improper for a Judge to suggest other lines of argument to
counsel, provided this is not unfair to one of the other
parties. If these
arguments are adopted by counsel (as they were in this case), then they will be
dealt with by the Court in the
same way as any other submission.
[354] It would probably have been better in this case to have required a
formal amendment to the pleadings but that this did not
occur cannot invalidate
the arguments. If the way the arguments were dealt with by the Court is in
error then that can be challenged
on appeal substantively in the normal
manner.
[355] Judges should, however, be circumspect in suggesting new lines of
argument. In civil cases, it is the responsibility of parties
to argue their
cases and judges should, where possible, attempt to avoid entering the fray
– Sir Gavin Lightman QC “Is
the Adversarial System Past its Use By
Date?” (New Zealand Bar Association and Legal Research Foundation
Conference Civil Litigation In Crisis – What Crisis?,
Auckland, 22 February 2008) at [17]. See also Partridge and Farmer QC
“Civil Litigation in Crisis – What Crisis?”
NZ Lawyer (30 May
2008) at 10.
Should the interim orders have been made?
[356] The Crown appeals against the granting of interim orders by Harrison J in this case – see Ding v Minister of Immigration HC AK CIV 2005-404-4900
1 September 2005.
[357] Aside from the question being moot because those original interim orders have expired, the fact that this was a test case means that it was well within Harrison J’s discretion to make those orders.
Result and costs
[358] In CA184/06, the Ye children’s appeal, the appeal is allowed
(by majority) and the matter is remitted to the Immigration
Service for
reconsideration. Of those who would remit the matter (Glazebrook, Hammond and
Wilson JJ), the majority view is that
expressed in Hammond and Wilson JJ’s
judgment. In accordance with that judgment, if the Service sees fit, the matter
should
be reconsidered in light of the reasons for judgment given by Hammond and
Wilson JJ.
[359] The cross-appeal in CA184/06 is allowed unanimously, 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.
[360] Costs of $12,000 plus usual disbursements are to be paid by the Crown
to the second respondent in CA184/06, on condition that
the costs award is used
to pay the fees of counsel involved in the appeal. Mr Bassett, in the best
traditions of the Bar, was prepared
to act for Ms Ding in the appeal on a pro
bono basis but that should not inhibit him and any other counsel involved in the
appeal
from rendering an account for their services up to the level of this
costs award. There are no other costs awards.
[361] In CA192/06, the Qiu children’s appeal, the appeal is
dismissed by a differently constituted majority, (Hammond,
Chambers, Robertson
and Wilson JJ). There is no costs award.
[362] The cross-appeal is allowed unanimously, 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.
[363] Mr and Mrs Qiu must not, however, be removed from New Zealand
within
20 working days after the date of this decision. If, within that time, they or the Qiu children apply for leave to appeal to the Supreme Court, the Qius must not be removed from New Zealand before that application is determined, unless the Supreme Court determines otherwise.
[364] In CA205/05, the appeal by the Minister of Immigration, the
appeal is dismissed (unanimously) and there is no order
as to costs.
ADDENDUM
[365] For the avoidance of doubt, this addendum is to be treated
as part of
Glazebrook J’s judgment.
Specific matters relating to the Ye children
[366] [Suppressed]. [367] [Suppressed]. [368] [Suppressed]. [369] [Suppressed].
Considerations relating to refugee status
Comments relating to possible detriment
[370] At the time of the Ye children’s birth, the parents were in the
process of having their appeal against the refusal of
refugee status considered
by the RSAA. The appeal was heard on 2 April 1997, shortly before Willie’s
birth, and the decision
upholding the refusal of refugee status was released on
8 June 2000, just after Tim’s birth.
[371] The RSAA explained that there had been a long delay because initially
they were going to look at this and a related appeal
as being suitable test
cases on “black children” and membership of a particular social
group. They decided that this
was not the case to re-examine this issue because
they found against Ms Ding and Mr Ye on credibility grounds. They also rejected
the submission that the reason for having more than one child was because of the
parents’ Buddhist faith.
[372] The RSAA, however, recognised that there might be adverse consequences on their return to China but that these would not be for reasons covered by the
Refugee Convention. Any adverse consequences to Ms Ding would, however, be
relevant to the consideration of the effects of the one-child
policy – see
above at [256] - [263]. It said:
It may be that on their [Mr Ye and Ms Ding’s] return to China they will face penalties such as fines and the likes and/or be required to undergo sterilisation. Any such state sanctions will be imposed in accordance with the generally applicable family planning regulations, and not as a discriminatory measure for a Convention reason. (Refugee Appeal No. 3/91
20 October 1992).
[373] Mrs Qiu arrived in New Zealand on 28 December 1996. On 5 March 1997
she made an application for refugee status. This was
declined on 15 October
1998 by the Refugee Status Branch of the Service because she had failed to
present for her refugee interview.
Mrs Qiu’s appeal to the RSAA was
lodged in May 1999 and dismissed on 28 January 2000. Before Mrs Qiu lodged the
appeal with
the RSAA she had been served with a removal order. As well as
appealing to the RSAA she lodged an appeal with the RRA. The RRA
appeal was
determined after the RSAA appeal. It is discussed above at [9] and [268]. It
appears that Mrs Qiu was given another
permit while the RSAA appeal was being
conducted.
[374] Mr Qiu arrived in New Zealand on 1 December 1997 and applied for
refugee status on 10 December 1997. Mr Qiu’s application
was based on the
alleged effects of the one-child policy he had suffered in China (he having had
two children there). The Refugee
Status Branch declined his application on 31
May 2000. It did state, however, that disciplinary measures against those who
violate
the one-child policy include financial penalties in the form of a fine
or loss of employment.
Status as failed refugee claimants
[375] The Ye children and Ms Ding submit that Mr Zhou appears to have considered that, as Ms Ding was a failed refugee complainant, she could not be given a permit, under any circumstances. In their submission, this was an error of law. The Qiu children point to a similar alleged error by Mr Wang.
[376] In support of their submission the Ye children and Ms Ding
point to Mr Zhou’s affidavit of 14 October 2005
where he said that, since
1 September 2000, Ms Ding had an obligation to leave New Zealand and that she
was prevented from applying
from any further permits and from requesting a
special direction or a permit under s 35A. Mr Zhou said it follows that Ms Ding
cannot
remain lawfully in New Zealand. In the Qius’ case, Mr Wang
wrote at the end of the humanitarian questionnaire:
A failed refugee claimant, there are no compelling reasons why a custodial
removal should [not] take place.
[377] In the appellants’ and Ms Ding’s submission Mr Zhou
(and probably Mr Wang) wrongly equated the restriction
on applying for a s 35A
permit with a restriction on the granting of one. Section 35A expressly states
that the Minister or his
or her delegate may at any time, of the
Minister’s own volition, grant a permit of any type.
[378] I accept the appellants’ submission that Ms Ding and Mr
and Mrs Qiu’s status as failed refugees should
not be seen by immigration
officers as automatically requiring their removal and it does not mean that a
permit cannot be granted
under s 35A. That factor can be taken into account but
cannot be, of itself, determinative. The humanitarian assessment must be
carried
out and all factors, including the best interests of the children, appropriately
balanced. The whole point of conducting
a humanitarian interview is to
determine whether the discretion under s 35A should be exercised.
Publication
[379] Section 129T of the Immigration Act provides that confidentiality as to the identity of a refugee claimant and the particulars of the case must be maintained at all times during the determination and subsequent to the determination. As the provision is inserted for the benefit of refugee claimants I accept that it can be waived. In my view the mere filing of a judicial review application would not consitute waiver. However, I understand that Chambers J takes the view that, as the refugee proceedings were referred to in Baragwanath J’s judgment and we were not
asked to consider suppression of those details in this Court, this would
constitute a waiver. On reflection, I agree with this
view and therefore
this section of the addendum [370] - [378] may be published without
restriction.
HAMMOND & WILSON JJ
(Given by Hammond J)
Introduction
[380] In our view, the appeal by the Ding interests – the three Ding
children and, effectively, Ms Ding – should be
allowed. The result is
that the issue of Ms Ding’s removal from New Zealand should be remitted to
the Immigration Service
for reconsideration in light of what we have to say
hereafter.
[381] The appeal by the Qiu interests should be dismissed.
The Ding appeals
A long saga comes to a climax
[382] Ms Ding, a Chinese national, came to New Zealand from China in May
1996 with her husband, Mr Ye, who was also a Chinese national.
Certain
temporary permits held by Ms Ding eventually expired in September 2000.
Thereafter she had no lawful right to be in New
Zealand. She became what is
commonly referred to as an “overstayer”. Since that time she has
fought a tortuous rearguard
action to stay in New Zealand. She has exhausted
every possible avenue under the law to try and stay here.
[383] In fairness to Ms Ding, it should be said that there is nothing unusual in that course of action, however much it frustrates the immigration authorities, and possibly members of the public. This phenomenon is happening all around the world as less well-placed persons struggle to improve their circumstances in life by removing themselves to another country. The great swirl of people throughout the
world seeking to change their “home” is one of the most obvious
and difficult dilemmas of our age.
[384] Ms Ding bore three children to Mr Ye in New Zealand: Willie Ye, who
was born in April 1997; Candy Ye, who was born in September
1998; and Tim Ye,
who was born in May 2000.
[385] These three children are New Zealand citizens. They
acquired their citizenship while their parents were lawfully
in the country, on
temporary permits. The children are entitled to the full measure of protection
provided to them by New Zealand’s
public and private law, as well as any
international obligations to which New Zealand has subscribed.
[386] The law has now changed. If born after 1 January 2006, such children
would not be entitled to New Zealand citizenship, by
birth. Doubtless there is
room for considerable debate about the wisdom of the adoption of such a measure
but that is of no present
consequence. That was a decision for Parliament to
make. We observe the usual convention of not commenting on the merits of
the
law as adopted. The present significance is simply that, as Dr Harrison QC
reminded us, there is what he termed “a significant
cohort” of young
New Zealand born citizens who are in the same position as the Ye children. So
this case has a practical import
beyond the circumstances of just these three
children.
[387] On 23 December 2004, after his temporary permits had expired and he
had exhausted his legal remedies, Mr Ye was removed from
New Zealand pursuant to
a removal order. That left Ms Ding as a solo mother in New Zealand, with three
young children ranging from
four to seven years of age. Those three children
are New Zealand citizens, but Ms Ding has no lawful right to be in New Zealand,
unless she is permitted to remain with the children for humanitarian
reasons.
Last-gasp endeavours to avoid removal
[388] After Mr Ye was removed from New Zealand, Ms Ding is said to have gone into hiding with her children. Certainly she proved to be difficult to locate. When
she was eventually located on 23 August 2005, she was served with a removal
order and she was taken into custody pursuant to
s 59 of the
Immigration Act 1987 (the Act).
[389] The removal order served on Ms Ding was issued under s 54 of the Act,
under the signature of an immigration officer, Mr Zhou.
Under s 133 of the Act
an immigration officer has to be designated as such by the Secretary of Labour,
and performs functions of
quite some consequence for individuals. For
instance, the removal order in s 54 has to be made by the chief executive or an
immigration
officer (as was true of this case) on being satisfied of certain
things. Some of those things are of a more “bureaucratic”
character: that Ms Ding was not a New Zealand citizen; did not hold a permit;
was not exempt under the Act; and so on. But the
effect of a removal order is
to authorise the police to take into custody the person who is subject to the
order (see s 55). And
the immigration officer also has authority under s 58 of
the Act to cancel the removal order. Those are decisions of distinct
importance.
[390] When Ms Ding was taken into custody, two things took
place.
[391] First, Mr Zhou elected to consider again the question of whether Ms
Ding should be “removed” from New Zealand.
He was
empowered – although not required – to take this step by s 58 of
the Act, which provides:
58 Cancellation of removal order
(1) An immigration officer who has been designated by the
chief executive for the purpose of making removal orders
under section 54 may,
at any time while the person named in the removal order is still in
New Zealand, cancel a removal
order that has been served by endorsing a copy of
the order accordingly, and personally serving that copy on the person named in
the order.
(2) The cancellation endorsement serves as a direction to any person
who may be detaining the person in custody in reliance
on the order to release
the person from custody immediately.
(3) An immigration officer who cancels a removal order must ensure
that any person who is detaining the person named in the
order in reliance on
this Part releases the person immediately.
(4) In the case of a person who has already been removed from or has left New Zealand, an immigration officer of the type referred to in
subsection (1) may cancel a removal order by sending the person named in it a
notice to that effect in the prescribed form.
(5) Nothing in this section gives any person a right to apply
to an immigration officer for the cancellation of a
removal order, and where
any person purports to so apply—
(a) The immigration officer is under no obligation to consider the
application; and
(b) Whether the application is considered or not,—
(i) The immigration officer is under no obligation to give reasons
for any decision relating to the application, other
than the reason that
this subsection applies; and
(ii) Section 23 of the Official Information Act 1982 does not apply in
respect of the application.
[392] Ms Ding had been taken to the Auckland Central Police Station. Mr
Zhou interviewed her there. He filled out what is termed
a humanitarian
questionnaire. He did so because this is part of the Immigration Service’s
operational procedures. Mr Zhou has
deposed:
The humanitarian questionnaire specifically refers to New Zealand’s
obligations under international law including the International
Covenant on
Civil and Political Rights 1966, the Optional Protocol to the Covenant, the
Convention on the Rights of the Child 1989
and New Zealand’s reservations
to that covenant. It refers to the importance of the family being the natural
and fundamental
group unit of society and the state. It also refers to the
requirement that every child shall have the right to such
measure of
protection as are required by his status as a minor on the part of his family,
society and the state and that in all
actions concerning the children the best
interests of the child shall be a primary consideration.
[393] To the extent that Chambers and Robertson JJ appear to suggest, in various ways explicitly, and in some ways implicitly, that this process simply goes too far and is not required because it lards what could be termed “a process on top of a process”, the learned Judges go too far. In the first place, it is well within the competence of a Government department – and one would have thought it admirable
– to see that international obligations of the kind we have just referred to are respected. And perhaps equally as importantly, once an inquiry in pursuance of obligations of that kind is undertaken, it is a well established principle of public law that a body should follow its own established internal “rules”, otherwise it risks
discriminating unlawfully in the particular case. We will return shortly to
the outcome of that inquiry by the immigration officer.
[394] To continue for the moment with the flow of the narrative, the second
thing that happened is that on 30 August 2005
Ms Ding’s
solicitor, Mr Foliaki, sent correspondence to the Office of the
Associate Minister of Immigration,
the Hon Damien O’Connor. It should
be said by way of acknowledgement – it is set out in full in the judgment
of Chambers
and Robertson JJ at [481] - [485] – that the Minister had been
invited to intervene in Ms Ding’s case on several occasions.
He had last
declined to do so on 21 March 2005. Part of what went to the office of the
Associate Minister on this occasion
was a psychiatric report which had
been obtained by Mr Foliaki’s office, indicating that Ms Ding was
extremely sick.
She was suffering from depression and was possibly
suicidal.
[395] The Private Secretary to the Associate Minister replied to Mr
Foliaki on
31 August 2005 saying:
As the present and a former Minister have declined to intervene in
Ms Ding’s case on six prior occasions and she
has exhausted all appeal
processes, this case will not be put before the Minister again based on the
information you have provided.
As I understand it Ms Ding’s removal is
planned for tomorrow and I anticipate her removal will proceed as currently
planned.
That communication is endorsed also with “copy for Phillip
Zhou”. That was obviously advice to him of the stance
being taken in
the Minister’s office.
[396] The correspondence we have just referred to suggests that the approach to the Minister’s office never even reached his desk; that is, it was dealt with at the staff level and was not considered by him. In fairness to the Minister, we should add here that it is not our understanding that there was any obligation in law on the Minister to consider the matter; as we have already indicated the “last ditch” consideration (if it occurred at all) had to be that of Mr Zhou, who was therefore a duly appointed official of the state making an important decision – once he elected to embark on the exercise – as to whether this woman was to be sent from New Zealand.
[397] Chambers and Robertson JJ suggest that this is all very undesirable,
and discuss why this sort of “last tier”
consideration after all
other processes have been exhausted is unsuitable, and is not even required. In
that respect, those arguments
go well beyond what was put to us by Mr Carter in
his very responsible submissions in a difficult case. This “tacked
on”
procedure has been adopted in New Zealand for good reasons, which
include an endeavour to squarely face international law obligations.
Further,
given the drawn out nature of these cases, circumstances may have changed since
the last consideration of the case. We
do not see why this Court should
“roll back” this safeguard procedure adopted in the Department.
There must also be
a concern that Chambers and Robertson JJ go much further than
what the Crown contended for at the hearing, with the consequence
that
counsel for the appellants did not have the opportunity to
respond.
[398] For present purposes, the important point is that Mr Zhou did take on the difficult burden of considering whether the removal order which he had caused to be issued should be “cancelled” under s 58 of the Act. Not only that, he issued something which he himself endorsed as being a formal “decision”, on 31 August
2005. It is as well if we set that document out in full:
Humanitarian Interview with Ms Yueying DING (cn: 15587446)
conducted on 23/08/2005.
Stage Three: Decision:
Ms Ding arrived in NZ on 06/05/1996 with her husband Mr. Weiguang Ye and was
granted a visitor’s permit on arrival valid till
06/06/1996.
Ms Ding claimed refugee status on 27/05/1996. This claim was declined on
29/11/1996.
Ms Ding’s appeal to the RSAA was also declined on 09/06/2000. A subsequent appeal to the RRA was withdrawn.
Ms Ding has made 6 representations to the Minister of Immigration. The
Minister declined to intervene in all representations.
Ms Ding was taken into questioning by NZ Police on police matters on
11/06/2004. She was served with a Removal Order on the same day but was
released to allow her to take care of her children.
Ms Ding’s husband Mr Weiguang Ye was located on 19/11/2004 and was removed from NZ on 23/12/2004.
Ms Ding was offered the chance of returning to China on a voluntary basis on
2 different occasions dated 11/06/2004 and 25/11/2004
respectively to avoid
removal action and a 5-year-ban. Ms Ding failed to cooperate with NZIS and
went into hiding with her children
to avoid contact with NZIS.
Ms Ding had been advised, during an interview with NZIS, that non
cooperation would result in removal action. She was
also advised that it would
not be in the best interests of herself and her children to remain unlawfully in
NZ.
Ms Ding has taken High Court actions on 2 occasions: on 23/06/2004 and on
21/12/2004.
I have considered the interests of the 3 NZ born children. I understand that
Ms Ding may face financial difficulties with the
schooling and any
hospitalisation of the 3 NZ born children.
I have also considered that Ms Ding has no family support in NZ. Her
husband, mother, 2 additional children, 3 brothers & 3
sisters are currently
living in China. Ms Ding and the 3 NZ born children will have the support of
the family members in China.
The 3 NZ born children all speak
Cantonese.
Ms Ding has limited ability to support herself and the 3 NZ born children in
NZ. Ms Ding has claimed that she is only able to earn
about $100 per week as a
cleaner and would no doubt have to rely on a benefit eventually.
I have also considered the recent submission from her legal representative in
the form of a Psychiatric report which claims that Ms
Ding is suffering from a
depressive disorder, domestic violence, sexual and emotional abuse. However,
these claims are recent and
have never been put as submissions to the RSB, RSAA,
RRA and the 6 representations to the Minister of Immigration. Besides for
the fact that there is no document or other evidence to suggest that she
suffered abuse at the hands of her husband, she
could call on the protection of
the Chinese authorities (Police) once back in China should her husband try to
abuse her.
I have also considered the rights of the NZ Government to determine who
should remain within its borders including the rights of expulsion
of persons
not lawfully in NZ.
I have carefully weighed the competing matters set out above and I believe
that Ms Ding should be returned to China and that it would
be of the best
interests of the 3 NZ born children to return to China with their mother and
join their father and the rest of the
family.
Signature of Immigration Officer: “Mr Zhou” Date: 31/08/2005
[Emphasis added].
[399] One may wonder what had become of the three children after Ms Ding was taken into custody. The day after this “decision”, the three Ye children were made
wards of the Family Court at Auckland, pursuant to an order made by that
Court on
1 September 2005. The Chief Executive of the Department of Child, Youth and
Family Service was appointed as agent of the Family
Court. The order was
applied for and made while Ms Ding was in immigration detention. The
fact that the children became
wards of Court is significant: they cannot be
removed from New Zealand without the permission of the Family Court.
[400] To complicate matters, Ms Ding was released from immigration
detention on
14 September 2005 – pending the finalising of this long running
litigation – and the children have been in her continuing
care since that
date. To our knowledge, the order of the Family Court has never been varied or
discharged. If that is correct,
the children are still wards of the Family
Court, although they have continued in the day to day care of their
mother.
The immigration officer’s “decision”
[401] In what we are about to say, we do not for one moment wish to be
taken as in any way seeking to deflect immigration officers
from giving written
“decisions”. Given the terms of s 58 of the Act it is admirable that
the officer who reconsidered
the “removal” reduced his consideration
to writing, and took responsibility for it.
[402] There may be a question as to whether, once an official decides to take a step under s 58 – where the statute specifically provides he or she does not have to consider or do anything at all other than to say that he or she is not going to consider the matter – the subsequent decision is then reviewable. The view we have come to is that it is. It seems to us that the officer was exercising a statutory power of decision within the Judicature Amendment Act 1972, in that he was (admittedly voluntarily) reconsidering a lawful decision which had already been made under s 54 of the Act. And we are fortified by the view we have taken by the observations of Woolf, Jowell, and Le Sueur in De Smith’s Judicial Review (6ed 2007) at [7-108], who consider that “reasons given voluntarily where there is no duty – will be reviewed in accordance with the same standards as are applied to compulsory standards ...”. Indeed it would, in our view, be surprising and regrettable if an official decision with serious consequences was immune from review by the Courts
simply because the official concerned was permitted, but not required, to
make the decision.
[403] Once that point is reached, we think it plain on the face of the “decision” that the immigration officer asked himself the wrong question. And that of course is a classic public law ground for intervention by way of judicial review – see O’Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 at 278 (HL) and Peters v Davison [1999] 2 NZLR 164 at
207 (CA) per Tipping J.
[404] If the immigration officer was going to consider the matter at all,
we would have thought the first issue before him was one
of fact: whether these
children were going to return to China. At the point of time the officer made
his decision, Ms Ding was (understandably)
hopelessly equivocal. If in fact Ms
Ding determined that the children were going to go with her, that would have
been the end of
this whole matter. If she could not, or would not, do so there
are mechanisms available at law to determine that issue. Mr Zhou
could have
said: “I am not going to make a final decision on this issue until I know
what is happening to the children”. And if Ms Ding could not or
would not make the determination, then of course the Family Court
could have, as
part of the exercise of its wardship jurisdiction. We suspect – although
it is not determinative of this appeal
– that the decision of that Court
would likely have been that the children would remain in New
Zealand.
[405] In any event, a second question might then have been: were there any
humanitarian reasons to interfere in the removal of Ms
Ding herself? She could
make that claim, in her own right, on humanitarian grounds, including
that of “family
connection”. Here we agree with Chambers and
Robertson JJ that it seems inconceivable, given everything that she had put up
over some years – and on a somewhat shifting sands basis – that she
could hope to persuade the officer that she should
remain in New
Zealand.
[406] A third question, also of a humanitarian nature, was whether these children or any of them had a present need for Ms Ding to stay in New Zealand – at least for the foreseeable future – for whatever reasons were able to be identified. But what was not open to the immigration officer was for him to decide – as he did – that it would
be in “the best interests” of the three New Zealand born children
and citizens to “return” to China, as he
said in the last and
critical paragraph of his decision. The officer had no ability in law to make
that decision. For reasons
we have already given it was either their mother or
the Family Court who were going to have to determine that issue.
[407] Overall, the critical question was surely as follows: was there
something about the circumstances of the children which meant
that Ms Ding
really should be allowed to stay – perhaps for some defined period of time
– in New Zealand?
[408] The relevant inquiries suggest themselves at different levels.
First, most people would not take much persuading that it
is better for a child
to have a present parent, than not have one at all, save of course in a case
where the parenting is demonstrably
hopelessly deficient and the child is at
risk. As the House of Lords noted recently, “[t]ime and again the
Strasbourg case
law emphasises the crucial importance of family life”:
Beoku-Betts v Secretary of State for the Home Department [2008]
UKHL 39 at [37]. Secondly, at another level, the child in question may
suffer from particular difficulties, whether medical or otherwise.
[409] It will be said – and rightly so – that the responsibility for advancing some present reason for her staying in New Zealand rested with Ms Ding and/or her advisors. Indeed one would have thought that the officer could have responded to the situation he was addressing simply by saying that no changed or special circumstances had been drawn to his attention. The short answer however is that – an inquiry having been embarked upon – the right question was simply never asked: was there anything about the current circumstances of these three New Zealand children, or one of them, that suggested Ms Ding should be allowed to stay in New Zealand? One would have thought that (at least at this late stage of her case) the mere fact that these children would not henceforth have a present mother would not be sufficient; sadly some children are separated from mothers by death and other human circumstances and yet show great resilience and wonderful development as human beings.
[410] To put it at its simplest, any hope Ms Ding had of staying in New
Zealand depended on a case being made out that there was
some present and
particular humanitarian reason why one or more of these children required that
she be here. Instead, the officer
seems to have embarked on an exercise
in which he was assuming that he had to determine what was in the best
interests
of the children, as to where they should be for the
future.
The content of humanitarian considerations at the removal
stage
[411] In case we have not made it sufficiently clear, we consider that
resort to s 58 is of a very limited character.
[412] At least at the stage an immigration officer is considering the final
step of “removal”, we think the Immigration
Service has got it about
right. Under s 58 the officer is not reviewing, as it were, all the
considerations (including Ministerial
reviews) which have gone before. He or
she is concerned with the present: time will have elapsed, new events may have
intruded,
and so on, since the earlier considerations. It is entirely sensible
and appropriate to ask whether anything new has occurred, or
anything has been
over-looked, which should presently occasion concern. The exercise at this
stage – as the section seems
to us to convey in the scheme of the Act
– is very much a “last ditch” and limited review, to see that
something
has not been overlooked, or that some new consideration has arisen
which ought to be taken into account.
The problem of remedy
[413] If the officer chose to embark on the course he took, and got the question wrong, should the Court intervene and send the matter back for reconsideration? There are a number of problems here. One difficulty is that under s 58(5)(a) the officer was under no obligation to consider the cancellation application in the first place. We have already given it as our answer, for better or worse, that if however he or she does so, public law principles apply. Secondly, s 58(1) makes it clear that the power to cancel is of an ongoing variety – it operates “at any time while the
person named in the removal order is still in New Zealand ...”. Hence,
the officer still has a present ability to reconsider
the removal.
[414] On this reasoning, we consider this Court is in a position to, and
should, allow the appeal with respect to the Ding children
and remit this case
to the Immigration Service for reconsideration. By that we mean the
restoration of the position as if the immigration
officer had not yet made
any determination under s 58. Whichever officer it may be will have to
decide whether to entertain any consideration of the (current)
circumstances of
the children and the family. But in that respect the officer will presumably be
faced with the Immigration Service’s
own manual, and the issue of
even-handedness as between persons subject to removal. In the event a decision
is made to consider
any representations for Ms Ding and/or the children, the
observations we have made earlier in this judgment may be thought to be
of
assistance, but we emphasise that the consideration of any
present humanitarian issues are for the officer.
[415] We have considered whether, given the limited nature of the relief we
can order, as a matter of discretion we should decline
relief at all here.
However we think it important that where officials embark on a wrong enquiry,
they should be directed to start
again, and make a correct enquiry – even
though the final determination in that respect rests with the official. This
is
standard public law learning, and entitles the appellant to a
judgment.
[416] Given that the children are wards of the Family Court, we make one
further observation. We would have thought that the officer
would be perfectly
entitled to make inquiry through the Family Court as to whether there
are considerations relating to
the children’s health and well-being which
he or she might take into consideration.
No over-arching displacement of the Immigration Act
[417] It is of course implicit in everything that we have said that we agree with our colleagues, and in particular Glazebrook J, that there is no over-arching interest on
the part of the Ye and Qiu children arising under New Zealand domestic
legislation which has the effect of displacing the provisions
of the
Act.
[418] Dr Harrison has made an understandable, and even noble, attempt to
persuade us to the contrary. But it simply cannot be the
case, in the most
general terms, that the Act is displaced in this manner.
The Qiu family
[419] The circumstances of the Qiu family are set out concisely
in [8] of
Glazebrook J’s judgment.
[420] In his humanitarian interview, Mr Qiu stated that he was afraid of
taking his two New Zealand born children back to China
because of the so-called
“one child” Chinese policy. He was concerned about his
children’s futures as they would
not be able to attend school in China.
He had concerns over being able to find employment for himself and Mrs
Qiu.
[421] The particular immigration officer reached the conclusion that there
were no compelling reasons why a custodial removal of
Mr Qiu should not take
place. We can see no proper basis on which this Court can intervene on public
law grounds in that decision.
[422] As to Mrs Qiu, that departmental process had still not been carried
out, and of course may not yet be.
[423] In the circumstances, we would join in the dismissal of that
appeal.
Conclusion
[424] The presiding Judge, Glazebrook J, has summarised the outcome of the various appeals and cross-appeals at [358] to [364]. We agree with that summary.
CHAMBERS AND ROBERTSON JJ
(Given by Chambers J)
Table of Contents
Para No
Introduction [425] The legislative framework [432] Period 1 [433]
Period 2 [443]
Period 3 [454] The factual and legal background to the Ding removal order [467] Arrival in New Zealand [468] Refugee status [470]
Appeal to Removal Review Authority [476] Applications to the Minister of Immigration [481] The first court proceeding is commenced [487] Events in 2005 [492]
The factual and legal background to the Qiu removal orders
Arrival in New Zealand [497]
Mrs Qiu’s application for refugee status [500] Mr Qiu’s application for refugee status [505] Alan Qiu is born [507] Application to the Minister of Immigration [508] Appeal to the RRA and High Court review [510] Further application to the Minister of Immigration [514] Events in 2005 [517]
Evaluation of Mr Zhou’s and Mr Wang’s actions
What has not been challenged [520]
The Ding removal order [525] The s 58 decision [529] The Qiu removal orders [545]
Our view on some of the issues considered by Glazebrook J [546] Care of Children Act 2004 [547] Tavita v Minister of Immigration [548] Puli’uvea v Removal Review Authority [553] Linking ss 54 and 58 to s 47(3) [558] Implying humanitarian criteria into s 54 [560] The interests of children [568] Standard of review [569]
Our view on some of the issues considered by Hammond and Wilson JJ [570] The s 58 task [571] Practical implications [573] Joining the Ye children as parties [575] Baragwanath J’s declaration [582] Result we would have given [583]
Introduction
[425] Yueying Ding, a Chinese national and an unlawful
overstayer in New Zealand, sought to review in the High
Court what she said
was an immigration officer’s decision under s 58 of the Immigration Act
1987, made on 31 August 2005. (We
shall call this “the s 58
decision”, without prejudice, for the moment, as to whether it was
truly a decision at
all.) She said that the immigration officer,
Philip Zhou, had unlawfully refused to cancel a removal order, which he had
made
eight days earlier under s 54 (“the Ding removal
order”).
[426] Subsequently, in the same High Court proceeding, her three infant
children, Willie Ye (born in 1997), Candy Ye (born in 1998),
and Tim Ye (born in
2000), all New Zealand citizens, joined in their mother’s challenge. As
New Zealand citizens, they have
never been at risk of removal. But through
their court-appointed counsel, Dr Harrison QC, they have challenged the
Immigration Service’s
attempt to remove their mother. They challenged not
only the s 58 decision but also the Ding removal order. They also challenged
the lawfulness of paragraphs D4.45 and D4.45.5 of the New Zealand Immigration
Service Operations Manual on the basis that those provisions
were inconsistent
with the Care of Children Act 2004 (“the CCA”).
[427] In separate proceedings, He Qin Qiu and Xiao Yun Qiu, both
Chinese nationals and unlawful overstayers, sought to
review in the High Court
orders made by immigration officers, again under s 54, to remove them
(“the Qiu removal orders”).
Their two New Zealand-born children,
Alan (born in 2000) and Stanley (born in 2005) were joined as third and fourth
plaintiffs.
[428] All three applications for review were heard together in the High
Court. Baragwanath J dismissed them. Ms Ding and her children
have appealed to
this court, as have Mr and Mrs Qiu’s infant children. (For some reason,
Mr and Mrs Qiu are merely respondents
on this appeal.) We have decided their
appeals should be dismissed. We now set out our reasons.
[429] We begin with the legislative framework under which the removal orders were made. That is at the heart of our decision and is the basis for our profound
disagreement with Baragwanath J’s reasoning (although not with his
substantive result) and with Glazebrook J’s reasoning.
Baragwanath J
defined the primary issue on the appeal as a “reconciliation of the right
of the Crown to remove aliens and
the rights of citizen children”.
Glazebrook J in her opinion has similarly focused on that issue. She describes
her first
issue in these terms:
Should the welfare and best interests of any child be the first and paramount
consideration when any immigration decision affecting
the child or his or her
parents?
[430] Those are not the primary issues as we see this case. There is no
dispute that the rights of New Zealand-born children are
relevant when assessing
the position of aliens in New Zealand. The primary question is, however, where
and when such matters are
considered. That requires a detailed
analysis of the legislative framework. It is our respectful view that these
cases,
which are essentially very simple, have gone off the rails because too
little attention has been paid to the legislative framework
within which the
removal orders were made.
[431] Once we have explained the legislation and its history, we shall then
turn to the relevant facts, first with respect to the
Ding/Ye appeal and then
with respect to the Qiu appeal. The legal arguments advanced on both appeals
were essentially the same.
Effectively Mr Mahon, for the Qius, adopted Dr
Harrison’s submissions.
The legislative framework
[432] The Immigration Act 1987 came into force on 1 November 1987. It is still the current statute, although since 1987 it has been the subject of two major amendments, which are highly significant so far as these appeals are concerned. The first was in 1991: the Immigration Amendment Act of that year came into force on
18 November 1991. The second major amendment was in 1999: the Immigration Amendment Act of that year came into force on 1 October 1999. In this opinion, we refer to the period between 1 November 1987 and 17 November 1991 as “period 1”, the period between 18 November 1991 and 30 September 1999 as “period 2”, and the period since 1 October 1999 as “period 3”.
Period 1
[433] Part II of the Act dealt with “persons in New Zealand
unlawfully”. If an immigration officer believed someone
to be in New
Zealand unlawfully, the officer applied to the District Court for a removal
warrant: s 50. That court was required
to issue a removal warrant if satisfied
that the person was not a New Zealand citizen, did not hold a permit to be in
New Zealand,
and was not exempt under the Act from the requirement to hold a
permit: s 51(3).
[434] If the District Court issued a removal warrant, the person named in
it (whom we shall call for convenience “the overstayer”)
had 21 days
in which to appeal to the Minister of Immigration to cancel the warrant: s
63(1). Under subs (3), the minister, on such
an appeal, could cancel the
removal warrant if satisfied that –
(a) Because of exceptional circumstances of a humanitarian nature, it
would be unjust or unduly harsh for the appellant to
be removed from New
Zealand, or for the removal warrant to remain in force for the full period of 5
years following the appellant’s
removal from New Zealand; and
(b) It would not in all the circumstances be contrary to the
public interest to allow the appellant to remain in
New Zealand or (as the case
may require) to reduce the period during which the removal warrant would
otherwise remain in force following
the appellant’s removal from New
Zealand.
[435] We refer to those criteria in this opinion as “the
humanitarian criteria”. Those criteria are replicated,
as we shall show,
in the 1991 and 1999 amendments, with only minor variations in
wording.
[436] The minister’s decision on a s 63 appeal was final. The
minister had no jurisdiction to reconsider the matter after
the appellant had
been notified of the decision, unless a court directed otherwise following a
successful application for judicial
review: s 63(7).
[437] If the minister decided to cancel a removal warrant, the appellant had to be immediately released from custody (if in custody). The minister was also required to determine, “by special direction”, the type of permit the appellant should be granted: s 63(9).
[438] The reference to a “special direction” was a
reference to the minister’s overall discretionary
power conferred by s
130. Under that section, the minister had an unlimited discretion to give
special directions in respect of
“any person, permit, visa, or
document”. This was a means by which the minister could deal with
“hard cases”
where someone was seen as deserving of the right to be
in New Zealand, even though that person might not come within existing
immigration
policy criteria.
[439] A removal warrant could be cancelled in two other circumstances. If
the minister was satisfied that a removal warrant had
been issued on an
application made in error or that for any other reason it was inappropriate that
the removal warrant should remain
in existence, the minister or an immigration
officer could apply to the District Court for an order cancelling the warrant.
The
court was obliged to “cancel the warrant accordingly”: s 65(1).
Where a warrant was so cancelled, the minister was required
to determine, again
“by special direction”, the type of permit the person should be
granted: s 65(2).
[440] While s 65 was in broad terms, it must, however, have had
to be read consistently with s 63(7) (discussed above
at [436]). Its primary
function would appear to have been to provide a safeguard for those cases where
the original application
for the warrant was tainted by factual error or where
circumstances had changed since a warrant was made, rendering the continuation
of the warrant inappropriate.
[441] As originally enacted, the Act did not make statutory
provision for the handling of refugee applications. They
were handled
pursuant to the prerogative. Nor did the Act make any express reference to
Government immigration policy. That too was
developed under the prerogative and
would have been held within the Department of Labour, the department responsible
for administering
the Immigration Act.
[442] The leading decision of Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA) was concerned with this statutory regime. We shall deal with this case in more detail below. But, in brief, Mr Tavita was seeking to review a minister’s decision on a s 63 appeal.
Period 2
[443] The 1991 amendment made substantial amendments to the 1987 Act. We
deal here only with those relevant to the current appeals.
First, while
Government immigration policy continued to be made pursuant to the prerogative,
the minister was required, for the
first time, to publish the Government’s
policy “relating to the rules and criteria under which eligibility for the
issue
or grant of visas and permits [was] to be determined”: s 13A, as
inserted by s 7. The departmental manual of immigration
instructions was to be
publicly available. In like manner, the Government residence policy was to be
“reduced to writing
and certified by the Minister as Government residence
policy”: s 13B, as inserted by s 7. By s 13C, immigration officers
were
required to comply with Government residence policy and any discretions were to
be exercised “in terms of that policy”.
The Act made clear,
however, that such restriction on immigration officers did not prevent the
minister from making any decision
to issue a residence visa or grant a residence
permit as an exception to Government residence policy in any particular case: s
13C(2).
The minister’s powers under s 130 remained
unaffected.
[444] The 1991 amendment made substantial changes to the regime for
removing overstayers. Now removal orders could be made
by immigration
officers themselves. There was no longer any need to apply to the District
Court for a removal warrant. The
criteria for removal orders (as removal
warrants were now called) remained unchanged; namely, the immigration officer
had to be satisfied
that the person was not a New Zealand citizen, did not hold
a permit to be in New Zealand, and was not exempt under the Act from
the
requirement to hold a permit: s 50, as inserted by s 23.
[445] The overstayer’s right of appeal was changed. Instead of an appeal to the minister on the humanitarian criteria, the Act now provided for an appeal to a new statutory body, the Removal Review Authority (“the RRA”). This authority was an independent appellate tribunal, constituted under s 63 (as inserted by s 31). The tribunal members were to be senior lawyers with expertise in this field. Two kinds of appeal were possible. The first was an appeal on the facts, for those situations where the appellant disputed that he or she was unlawfully in New Zealand: s 63A.
The second type of appeal was one “on humanitarian grounds”: s
63B. Here, it was for the RRA to apply the humanitarian
criteria which
previously the minister had applied under a s 63 appeal.
[446] The fact that a humanitarian appeal was provided for would affect, we
think, the matters an immigration officer could consider
before making a removal
order. It would make no sense for an immigration officer to make a removal
order if there were clear
humanitarian grounds justifying the
overstayer’s remaining in New Zealand. To close one’s eyes to
such
considerations would simply lead to unnecessary appeals to the RRA,
unnecessary in the sense that they would be bound or highly likely
to
succeed.
[447] If the RRA allowed the appeal, it would cancel the removal order.
It was empowered to direct an immigration officer to grant
to the appellant the
appropriate permit: s 63E(c).
[448] For the first time, the Act made provision for a further appeal.
Section 115A, as inserted by s 35, provided for a right
of appeal to the High
Court on questions of law. An appeal to the Court of Appeal was also provided
for, by leave: s 116, as inserted
by s 35.
[449] The 1991 amendment also empowered immigration officers to
cancel removal orders on their own initiative: s 52A, as
inserted by s 23.
Presumably this power was to be exercised in situations similar to those in
which the minister would have applied
to the District Court to have a removal
warrant cancelled under the old s 65. It would seem inevitable that s
52A’s scope
would, in general, be confined to cases of changed
circumstances. It is inconceivable, for instance, that Parliament could have
envisaged any level of immigration officer countermanding a decision of the
specialist appellate authority, still less the High Court
or the Court of
Appeal.
[450] Even in a case of changed circumstances, Parliament was concerned that s 52A should not be interpreted as conferring rights or expectations on overstayers. Parliament included a new subsection, which had not been in the old s 65. That new subsection, subs (3), read as follows:
Nothing in this section gives any person a right to apply to an immigration
officer for the cancellation of a removal order,
and where any person
purports to so apply –
(a) The immigration officer is under no obligation to consider the
application; and
(b) Whether the application is considered or not, -
(i) The immigration officer is under no obligation to give reasons for
any decision relating to the application, other
than the reason that
this subsection applies; and
(ii) Section 23 of the Official Information Act 1982 shall not apply in
respect of the application.
[451] We shall refer to this subsection, and its successor in the 1999
amendment, as “the no rights clause”. We should
also explain the
reference to s 23 of the Official Information Act. That is the section which
generally speaking gives people a
right to reasons for any decision affecting
them.
[452] The scheme of s 52A was, therefore, empowering; it did not
confer rights on overstayers. Obviously, there had to be a mechanism to
cancel removal orders, as, while a removal order remains
in place, the police
have an obligation to effect the removal mandated by the order.
[453] It was this statutory regime which was under consideration in the
landmark decision of Puli’uvea v Removal Review Authority
(1996) 2 HRNZ 510 (CA). Again, we shall deal with this decision in more
detail later. This was a challenge to the RRA’s authority on a
humanitarian
appeal. It was brought as a judicial review application presumably
because Mrs Puli’uvea wanted interim relief under s 8 of
the Judicature
Amendment Act 1972. (She would have been out of time for a s 115A appeal,
although she could have applied for an
extension of time under s
115A(2).)
Period 3
[454] The 1999 amendment made further substantial amendments. Its principal purpose, as described in the Act’s long title, was to:
Improve the effectiveness of the removal regime for persons unlawfully in
New Zealand by streamlining the procedures involved, so ensuring – (i) A higher level of compliance with immigration law; and
(ii) That persons who do not comply with immigration procedures and rules are not advantaged in comparison with persons who do comply
...
[455] The most important change, for current purposes, was effected by s
34. It substituted an entirely new Part II dealing with
“Persons in New
Zealand Unlawfully”. It is this part with which we are principally
concerned in these appeals. The new
s 45 provides expressly for overstayers
“to leave New Zealand”. That obligation arises “from the
moment”
they are in the country “unlawfully”. If the
overstayer wishes to appeal against that requirement, he or she has to
appeal to
the RRA within 42 days after the day on which the person becomes unlawfully
within New Zealand: s 47(2). The RRA’s
jurisdiction is to determine the
appeal on the humanitarian criteria: s 47(3). The important point to note is
that the RRA appeal
now occurs prior to the making of a removal order, not after
it. There remains the possibility of an appeal from the RRA to the
High Court
(under s 115A) and to the Court of Appeal (under s 116). Subject to those two
rights of appeal, the decision of the RRA
on an appeal is final and it has no
jurisdiction to reconsider an appeal, unless a court otherwise directs: s
51.
[456] If the RRA (or the High Court or the Court of Appeal on appeal)
decides the appeal should be allowed, the RRA directs the
immigration officer to
grant the successful appellant either a residence permit or a temporary permit:
s 52. Note that the RRA no
longer orders, in the event of a successful appeal,
the cancellation of a removal warrant, as the removal warrant has not been made
at this point under the new procedure.
[457] If the appeal (including any further appeal) is determined against the overstayer or if the overstayer elects not to appeal, then the overstayer at that point becomes liable to be removed from New Zealand: s 53. Section 54 empowers an immigration officer to make a removal order. The immigration officer can make that order “if ... satisfied that section 53(1) or section 70(3) applies to [the] person”: s 54(1). (Section 70(3) can be ignored for present purposes: it was effectively a
transitional provision.) Under the Act as now constituted, the immigration
officer does not have to be satisfied of anything else.
Indeed, it would be
quite contrary to the scheme of the Act, as now constituted, for a s 54
immigration officer to consider anything
beyond what s 54(1) specified. In
particular, it is not the job of a s 54 decision-maker to consider the
humanitarian criteria,
such as would be appropriate (and indeed mandatory) for
the RRA to consider on a s 47 appeal. We say that for the following
reasons.
[458] First, there is no hint in s 54(1) itself that such considerations
need or even may be taken into account. Subsection (1)
provides for only one
matter to be satisfied – and that is a simple factual enquiry. That a s
54 decision-maker is so limited
in his or her discretion is entirely consistent
with the purpose of the 1999 amendment. That is to say, the procedure has been
“streamlined” so that the humanitarian criteria are considered
before the removal procedure gets under way.
[459] Secondly, the scheme of the Act is such that a removal order is made
straight after the decision of the RRA, assuming there
has been an appeal to
that tribunal. Parliament would not have envisaged that any immigration officer
should turn his or her mind
to the very question which the specialist appellate
authority (or perhaps even the High Court or the Court of Appeal) has just
turned
its mind to and found against the overstayer on. That would make no
sense at all. Nor can a humanitarian duty be forced on a s
54 decision-maker in
cases where the overstayer has elected not to appeal. If the overstayer wishes
to raise a humanitarian plea,
then the primary forum for such special pleading
is the RRA on appeal under s 47. There is nothing in the legislation to suggest
that the overstayer has a choice of forums for a humanitarian argument: either
the RRA or a “quasi-application” to the
immigration officer who is
scheduled to make a s 54 order. Indeed, the structure of the Act is quite to
the contrary.
[460] Thirdly, it is important to note that s 130 remains in the Act after the 1999 amendment. That is a route by which overstayers can approach the Minister of Immigration himself or herself for a case of special pleading. Many overstayers take advantage of this provision – sometimes repeatedly. (As we shall see, Ms Ding approached the minister under s 130 on no fewer than six occasions.) The minister,
under s 130, clearly is empowered to consider humanitarian concerns as a
final check before anyone is actually removed from New Zealand.
The minister
acts, as it were, as the final appellate authority. He or she could,
ultimately, effectively overturn decisions not
only of his or her officials but
even of specialist appellate tribunals and the High Court and the Court of
Appeal – of course,
only in the overstayer’s favour. We say
“effectively overturn” as, in formal terms, the RRA’s
decision, say,
would stand uncorrected, but the minister could give a special
direction requiring an immigration officer to issue, say, a residence
permit to
a person, even though that person had not established to the RRA’s
satisfaction that there were exceptional humanitarian
concerns justifying the
appellant remaining in New Zealand.
[461] Given that any person fighting his or her removal from New Zealand
will almost inevitably have exercised his or her right
to approach the minister
under s 130, and given that a s 54 immigration officer will be considering
making the removal order only
if the minister has declined to intervene, it
simply cannot have been Parliament’s intention that any immigration
officer
should be, on a s 54 decision, able to countermand not only
decisions of the specialist appellate tribunals but also his or
her own
boss’s decision!
[462] Section 58 provides for cancellation of removal orders. It is
effectively in the same terms as s 52A: see [449] above.
It contains the same
no rights clause. It remains an empowering provision; it does not confer
rights on overstayers. It is akin
to s 162 of the Education Act 1989, which
this court, in Attorney-General v Unitec Institute of Technology [2006] NZCA 317; [2007] 1
NZLR 750, held was merely “empowering” (at [38]) and did not confer
rights.
[463] The 1999 amendment also introduced a statutory regime
for the determination of applications for refugee
status: see the new Part
VIA, inserted by s 40.
[464] Both appeals with which we are concerned fall within period 3. Although Ms Ding, Mr Ye, and Mr and Mrs Qiu all applied for refugee status prior to the 1999 amendment, those applications in each case were not finally determined until after the 1999 amendment had come into force. It was not until 1 September 2000 that
Ms Ding and Mr Ye became unlawfully in New Zealand. Mrs Qiu became an
unlawful overstayer at some point in period 3 and certainly
by early 2002: her
position is complicated by the number of appellate proceedings she commenced,
during which her status in New Zealand
may have been protected by temporary
permits or interim court orders. (It is rather difficult to check, and the
point is in any
event not material.) Mr Qiu became an unlawful overstayer on 22
September 2000. The period 3 regime accordingly applies to all four
of
them.
[465] While, therefore, the period 3 regime requires primary focus, it is
essential to understand what preceded it so as properly
to understand the
purpose of the 1999 amendment. One also needs to understand how the period 1
and period 2 regimes worked in evaluating
cases like Tavita and
Puli’uvea on which Dr Harrison relied. They are not directly
transferable because of the different statutory framework under which they were
determined. Indeed, the 1999 amendment was in part a reaction to those two
landmark decisions.
[466] With this legislative background, we now turn to consider the factual
and legal background to the Ding removal order and the
Qiu removal
orders.
The factual and legal background to the Ding removal
order
[467] We set out the facts leading up to the Ding removal order in some
detail. We do this so that it can be seen how this case
fits within the
legislative framework we have outlined. We also want to demonstrate our view
that the Immigration Service have dealt
with Ms Ding and her husband at all
times fairly and appropriately.
Arrival in New Zealand
[468] Ms Ding and her husband, Wei Guang Ye, arrived in New Zealand on 6
May
1996. They were interviewed by immigration officers. They were asked why they had come to New Zealand. Ms Ding replied that she did not like China because the Government wanted to take her husband away “and lock him in jail”. Mr Ye explained further that he had a friend in Hong Kong who imported cars into China.
Mr Ye said that the Chinese Government had seized the cars and were now
looking for him as they believed he had been selling the cars
illegally.
[469] The immigration officers declined to issue Ms Ding and Mr Ye with
visitors’ permits and requested they be detained by
the Airport Police
under s 128B of the Immigration Act. They were so detained. An immigration
officer then re- interviewed them.
During the course of that interview, Mr Ye
made application for refugee status for himself and Ms Ding. Both of them were
then
issued with 30 day visitors’ permits while the refugee status
applications were being processed. Subsequently, Ms Ding’s
permit was
extended. Mr Ye’s permit was replaced with a work permit.
Refugee status
[470] Ms Ding and Mr Ye were assisted by lawyers on their application for refugee status. The Refugee Status Branch of the Immigration Service made its decision on
29 November 1996. The two officers who made that decision concluded that Ms Ding and Mr Ye were not refugees. Ms Ding and Mr Ye had pitched their case on the basis that they risked punishment if they returned to China because they had broken China’s family planning laws. (They had two children at that time.) Their opposition to China’s family planning policy was said to stem from their Buddhist religious beliefs. On that basis, they said they would be persecuted for a reason prohibited under the Convention relating to the Status of Refugees (1951) 189 UNTS
150, namely political opinion or religious beliefs.
[471] As to the former, the branch officers determined, based on earlier decisions of the Refugee Status Appeals Authority (the RSAA), that opponents of the one- child policy were “not imputed with a political opinion by the State because of their opposition”. The officers also found that China’s family planning policy did not differentiate between religions, with the consequence that the applicants’ fears stemming from their opposition to the family planning policy could not be said to stem from their religious beliefs. Finally, the branch officers noted that Ms Ding and Mr Ye did not meet the Government’s “humanitarian policy”.
[472] Ms Ding and Mr Ye then appealed to the Refugee Status Appeals
Authority. The RSAA was and is an independent appellate tribunal,
originally
constituted under the prerogative and since 1999 constituted under s 129N of
the Act. Tribunal members are senior
lawyers with expertise in the
field.
[473] Before the RSAA, Ms Ding and Mr Ye were again represented by counsel. The hearing began on 2 April 1997 but was then adjourned until 13 August 1999. The RSAA did not deliver its decision until 8 June 2000. The reason for the delays is explained in the decision and is not material to the issues we need to determine. Ms Ding and Mr Ye continued to live in New Zealand while this decision was pending. While here, they had three further children, Willie, in 1997, Candy, in
1998, and Tim, in 2000.
[474] The RSAA dismissed the appeal. The authority found that
much of Ms Ding’s and Mr Ye’s evidence was
“not to be
trusted”. The authority found that the appellants’ wish to leave
China was not related to their opposition
to China’s one-child policy or
to a fear of punishment for having breached that policy. The RSAA also found
that the
appellants’ desire to have more children was not
motivated “by sincerely held Buddhist beliefs”. The authority
also
rejected a suggestion that the appellants might suffer if they returned to China
because of “pro-democracy activities”.
The authority concluded
that the appellants had “no political background
whatsoever”.
[475] The RSAA held that the true reason Mr Ye wanted to leave China was
because “he had been sought by the Chinese authorities
in respect of
illegal commercial practices”. The RSAA concluded that the Chinese
authorities’ interest in Mr Ye was
“unremarkable” and could
not “constitute a discriminatory act for one of the Convention
reasons”.
Appeal to Removal Review Authority
[476] Ms Ding’s and Mr Ye’s temporary permits expired on 1 September 2000. They should have left New Zealand by that date: see s 34. Instead, they exercised
their right to appeal to the RRA against the requirement to leave New
Zealand. That appeal right, as we have set out above at [455],
is conferred by
s 47(1).
[477] While those appeals were pending, Ms Ding and Mr Ye,
through the New Zealand Refugees Self-Help Association,
applied to
the Minister of Immigration for a “special direction” under s
130. The lengthy application to
the minister referred to the fact that Ms Ding
and Mr Ye had had three children since being in New Zealand. The letter
referred
to what was said to be “common knowledge that those who breached
China’s one-child policy [would] be penalised to certain
extent [sic] with
no exception”. The applicants’ representative asked that that
“humanitarian factor” be
taken into account by the minister in
assessing their case.
[478] The application concluded:
Mr Ye and Ms Ding have been residing in this country since May 1996 and they
had since had three New Zealand-born children. The family
considers themselves
well settled in this lovely country and wish they could be allowed to
stay. They told me that they
missed the two daughters who are currently in
China and they wanted the girls to join them here.
[479] The minister, the Hon Lianne Dalziel, responded on 18 January 2001.
She said that she had considered the application “carefully”.
She
declined to take any further step at that stage, however, because it was not her
practice to intervene “in any case that
is under active consideration,
review or appeal”.
[480] It seems that decision led to Ms Ding and Mr Ye deciding to abandon
their appeals to the RRA.
Applications to the Minister of Immigration
[481] In March 2001, Ms Ding and Mr Ye made a second application to the minister for a special direction under s 130. The principal point made in Ms Ding’s letter was that her and Mr Ye’s “youngest children” were born in New Zealand and had the right to remain here. She said that, if she and Mr Ye were forced to leave New Zealand, they would not wish to take the children with them to China “where human rights receive so little consideration”. The minister declined that application
on 5 July 2001. She allowed Ms Ding and Mr Ye, however, 14 days within which
to leave the country without removal action being taken
against them. She
strongly advised Ms Ding and Mr Ye to take up that offer, because if they left
New Zealand voluntarily, they
would not be penalised and would be able to
reapply to enter New Zealand in the normal manner. The minister’s
decision has
never been challenged.
[482] Ms Ding and Mr Ye did not take the minister’s advice. They
remained in New Zealand unlawfully. On 5 September 2001,
they made a further
application to the minister for a special direction. This was their third such
application. They were once
again represented by a lawyer. This application
was much more detailed than the earlier applications. It referred to various
legal
authorities. It also relied on the United Nations Convention on the
Rights of the Child and the Universal Declaration of Human Rights.
In
particular, the application stressed the rights of Ms Ding’s and Mr
Ye’s New Zealand-born children to remain in New
Zealand.
[483] On 10 October 2001, the minister declined this application. She said
she had given “careful consideration to [the]
submission, with particular
reference to New Zealand’s obligations under international law”, and
in particular in this
case to the effect that removal to China would have on the
New Zealand-born children involved. She also advised that she had taken
these
matters into account in her previous consideration of “Mr and Mrs
Ye’s circumstances”. Again, that decision
has never been
challenged.
[484] Ms Ding and Mr Ye still did not leave New Zealand. In June 2003,
they made a fourth request to the minister for a special
direction or residence.
The minister declined that application on 30 July 2003.
[485] Still Ms Ding and Mr Ye did not leave New Zealand. The immigration authorities were not aware of their current whereabouts, as Ms Ding and Mr Ye had moved from the address where the service believed them to be living and had not disclosed to the service their new address. But the service caught up with Mr Ye in Nelson at a “Sanctuary Day” organised by the service. An immigration officer, Geoffrey Parr, interviewed Mr Ye. Mr Ye completed a humanitarian questionnaire, but failed to declare to Mr Parr that he had previously applied for refugee status.
Mr Parr issued his decision on 24 February 2004. By that time, he had found
out about Mr Ye’s failed application for refugee
status. That prevented
him from being able to assist Mr Ye, as Sanctuary Day conditions did not
permit the grant of temporary
permits to declined refugee applicants. Mr
Parr told Mr Ye he should immediately make arrangements to return to China. He
explained
that, if Mr Ye returned voluntarily, he could then lodge an
application for a visa at the New Zealand embassy in Beijing
“where
every consideration will be applied to your family circumstances in New
Zealand”.
[486] Still Ms Ding and Mr Ye did not depart. On 11 June 2004, Ms Ding
was served with a removal order.
The first court proceeding is commenced
[487] On 22 June 2004, Ms Ding and Mr Ye filed an application for judicial review in the High Court. They sought to challenge the decision of the RSAA made back in
2000. They also applied for interim relief, but, for some reason, their
lawyers chose not to bring that application on for hearing
at that
stage.
[488] The filing of this application did not prevent the service from
proceeding with Ms Ding’s removal, but that did not
happen because Ms Ding
and Mr Ye moved yet again and the service could not find them. It was not until
November that year that Ms
Ding and Mr Ye were found. At that time, Mr Ye was
served with a removal order. He was taken into custody. The immigration
officer
involved, Mr Zhou, decided not to take Ms Ding into custody as someone
needed to remain at home to care for the children.
[489] Later that month, Mr Zhou undertook “humanitarian
interviews” with both Ms Ding and Mr Ye. He concluded there
were no
compelling humanitarian reasons why removal should not proceed.
[490] These decisions prompted yet another application – the fifth – to the Minister of Immigration for a “special direction” for a residence permit. That application was considered by the Hon Damien O’Connor, Associate Minister of Immigration.
Mr O’Connor advised, on 22 December, that he had “considered the information” Ms Ding’s and Mr Ye’s lawyer had provided, but was not prepared to intervene. Mr O’Connor noted that Mr Ye was scheduled to depart from New Zealand on
23 December. He indicated that the service was prepared to allow Ms Ding to
remain in New Zealand until the outcome of her High
Court proceedings. He was
aware that the Crown, acting on behalf of the respondent, the RSAA, had applied
to strike out Ms Ding’s
application for review and that that application
was due to be heard on 9 February 2005.
[491] Mr Ye made a last-ditch attempt to stall his removal. Priestley J
declined that application on 21 December 2004: Ye v The Refugee Status
Appeals Authority HC AK CIV2004-404-3177. Mr Ye was removed from New
Zealand two days later.
Events in 2005
[492] The service’s strike-out application came before Cooper J on 9
February. The application was adjourned as Ms Ding’s
and Mr Ye’s
lawyer was not ready.
[493] Ms Ding made a further application – the sixth –
to the Minister of
Immigration. He declined to intervene on 21 March.
[494] On 27 April, Harrison J struck out the application for
judicial review Ms Ding and Mr Ye had filed. The service
had promised not to
effect Ms Ding’s removal until that application had been dealt with. Now
that it had been dismissed, the
service once again tried to effect Ms
Ding’s removal. But they could not find her: she had moved yet again.
Eventually,
she was located on 23 August, served with a further removal order,
and taken into custody. It is this removal order which Ms Ding
has now sought
to challenge.
[495] While in custody, Ms Ding completed a further “humanitarian questionnaire”. The service also arranged for Ms Ding to be psychiatrically examined. The doctor concluded Ms Ding was “not psychiatrically unwell” but was “clearly acutely distressed”. Mr Zhou decided not to cancel the removal order. That is the s 58 decision, which is the second decision challenged.
[496] The following day, Ms Ding commenced a new judicial review
application and secured from Harrison J an interim order preventing
her removal.
She has remained in New Zealand ever since pursuant to various court orders
pending the determination of this appeal.
The factual and legal background to the Qiu removal
orders
Arrival in New Zealand
[497] Mrs Qiu arrived in New Zealand on 28 December 1996 under the name of
Jingyuan Li. On 5 March 1997, she claimed refugee status
using this name. In
her refugee application, she stated that her date of birth was 23 January 1970.
She also ticked the box to
indicate she had never been married. She did not
claim to have any children. We now know this to be false, as Mrs Qiu was in fact
married (to Mr Qiu) and she and her husband already had two children, who
remained in China. That she had lied was not known, however,
at that time to
the Immigration Service.
[498] Mr Qiu arrived in New Zealand on 1 December 1997, using a false
passport. He was granted a visitor’s permit. (He subsequently
obtained
work permits, which, through extensions, remained valid until 22 September
2000.)
[499] On 10 December 1997, Mr Qiu too applied for refugee status, now using his true identity. The grounds for his application were that he and his wife had breached China’s one-child policy. In his application, he said he was married to a Xiao Yun Qiu, date of birth 23 January 1967. He said she was overseas in the People’s Republic of China and was not included in the application. He said he had two children, Han Feng Qiu and Han Bin Qiu, born in 1992 and 1994 respectively, and that these children were in China. All of this was true, except for his assertion that his wife was in China. She was not: she was here with him in New Zealand under a false name.
Mrs Qiu’s application for refugee status
[500] The Refugee Status Branch of the Immigration Service delivered its
decision on Mrs Qiu’s application on 15 October 1998.
(Of course, at this
stage, the service believed it was dealing with a Miss Li.) Mrs Qiu had failed
to turn up for her refugee
interview. The branch officers concluded:
In the absence of Miss Li, no findings of credibility or fact can be made and
it cannot be determined whether she is a refugee within
the meaning of Article
1A(2) of the Refugee Convention. As such, this application is
declined.
[501] The same branch officers also undertook a “humanitarian
consideration”. Their conclusion in this regard was
as follows:
As Miss Li has not indicated that she has any close family residing in New
Zealand it would appear she is not eligible to apply for
residence under current
humanitarian residence policy.
[502] As a consequence, Mrs Qiu’s visitor’s permit, which she had been given pending resolution of her refugee application, was revoked with effect from
12 February 1999. She was served with a removal order on 8 April 1999. At that time, the period 2 statutory regime applied. She accordingly had the right to appeal against the removal order to the RRA under s 63B. She exercised that right on
20 May 1999. At the same time, she also appealed against the refugee
decision to the RSAA.
[503] The refugee status appeal was heard first. Mrs Qiu continued to
present as a single woman. Her claim for refugee status
was based on alleged
political activities in which she said she had engaged in China. She said she
had been told she would be arrested
immediately upon her return to China and
believed that she could well be executed.
[504] The RSAA did not believe Mrs Qiu. It concluded there were “a number of implausibilities and inconsistencies” in her account and the authority found her explanations, when these implausibilities and inconsistencies were put to her, “less than convincing”. The RSAA concluded Mrs Qiu was not “a credible witness”. Her appeal was dismissed on 28 January 2000. It should be noted that, while the RSAA
was by this stage aware of the fact that Miss Li was in fact Xiao Yun Qiu, it
was not aware of the connection between Xiao Yun Qiu
and He Qin Qiu.
Mr Qiu’s application for refugee status
[505] Meanwhile, Mr Qiu’s application for refugee status was
proceeding before the Refugee Status Branch. Mr Qiu’s
claim rested not
on any alleged political activity in China but rather on Mr Qiu’s and his
wife’s breach of China’s
one-child policy. He said he had an unpaid
fine of RMB5,000. He said that he feared, if he were to return to China, he
would be
arrested and imprisoned for his failure to pay the fine.
[506] The branch officers considered in detail China’s one-child policy. They referred to the fact that that policy had been the subject of “most comprehensive discussion” in a number of RSAA decisions. They accepted that those who breached China’s family planning policies were frequently fined, but that disciplinary measure was not classified as “persecutory”. The branch officers also noted that the details of that policy were well publicised in China, ensuring people were well aware of the consequences of breaching the policy. Mr Qiu was presumed to have known that a substantial fine would be the likely consequence of his and his wife’s breach of the one-child policy. The branch officers rejected his claim for refugee status on
31 May 2000. His last work permit expired on 22 September that
year.
Alan Qiu is born
[507] The next event was the birth, on 12 June 2000, of Alan Qiu in New
Zealand. His father was He Qin Qiu, his mother Xiao Yun
Qiu. No mention had
been made of this pending birth when Mr Qiu presented his submission to the
Refugee Status Branch, even though
Xiao Yun Qiu must have been pregnant
at that time. Presumably this was because Mr Qiu was still asserting that his
wife,
Xiao Yun Qiu, was back in China looking after their two
children.
Application to the Minister of Immigration
[508] The first the Immigration Service knew about the connection
between applicant Xiao Yun Qiu and applicant He Qin Qiu
was when their
immigration consultant made application to the Minister of Immigration on 2
October 2000. By this time, Mr Qiu was
an overstayer. The consultant asked Ms
Dalziel for a special direction (under s 130) to allow Mr Qiu “and his
partner Qiu
Xiao Yun” to make an application for permanent residence. The
consultant referred to the fact that Mr and Mrs Qiu had “formed
a
relationship in New Zealand and that they had a New Zealand-born
son”. There was no reference in this letter to
the alleged wife in China
(of the same name) or to the two children in China. It was not, of course, true
that Mr and Mrs Qiu had
“formed a relationship in New Zealand”: they
had been married in China.
[509] The minister responded on 26 April the following year. She said she
had given Mr Qiu’s “request for residence
... careful
consideration”. But she had decided not to grant Mr Qiu a permit.
She noted that Mr Qiu was now “in
the country unlawfully and [was]
expected to leave”. She indicated, however, that she would give him 14
days within which
to leave the country without removal action being taken. She
strongly advised Mr Qiu to take up that offer because, if he left New
Zealand
voluntarily, he would not be penalised and would be able to reapply to enter New
Zealand in the normal manner. Mr Qiu did
not take up that
suggestion.
Appeal to the RRA and High Court review
[510] Mrs Qiu’s appeal to the RRA remained undetermined. It had
been parked while her refugee appeal was being considered.
The RRA, after
giving Mrs Qiu the opportunity to make additional submissions following the RSAA
decision, delivered a detailed decision
on 11 June 2001. The authority referred
to and quoted from all the leading authorities, including Tavita,
Puli’uvea, and Patel v Removal Review Authority [2000] NZAR
200 (CA). It is clear from the decision that the humanitarian
criteria relied on were two-fold:
(a) The matters raised before the RSAA. The RRA considered Mrs Qiu’s criticisms of the RSAA decision.
(b) The birth of Alan.
[511] The RRA was not persuaded that the attack on the RSAA’s
decision was in general well-founded. It regarded Alan’s
birth as
“a weighty factor to be considered” but “not
decisive”. The authority dismissed the appeal.
[512] Although the Act provided a right of appeal against the RRA’s decision (on a question of law), Mrs Qiu elected not to exercise that right. Instead, she applied for judicial review. O’Regan J heard that application and delivered his decision on
21 December 2001: Qiu v Removal Review Authority [2002] NZAR 430 (HC).
In summary, His Honour found:
(a) The RRA had not misunderstood s 63B and had correctly applied that
section as interpreted by the Court of Appeal in Patel: at
[12].
(b) The RRA had applied the correct legal test in determining
the importance of the interests of the child. It had correctly
held that the
child’s interests were a weighty but not a decisive factor. It was within
its discretion to rule that the interests
of the child did not amount to
exceptional humanitarian circumstances in this case: at [20].
(c) The RRA had correctly made use of the RSAA’s decision. It had
not allowed its discretion to be improperly fettered
by the
RSAA’s decision: at [25]. That was demonstrated, His Honour said, by the
fact that the RRA’s findings “deviated
... from the findings of the
RSAA when Ms Qiu put new evidence before the RRA”: at [26].
[513] His Honour considered three other challenges to the RRA’s
decision, all of which he rejected. None is of current importance.
O’Regan J dismissed Mrs Qiu’s application for judicial
review.
Further application to the Minister of Immigration
[514] It was now Mrs Qiu’s turn to apply to the minister for a
special direction. She made the application through the Hon
Matt Robson MP. In
supporting documentation, she stated that her status was married with one child,
a male born in New Zealand
on 12 June 2000.
[515] The minister responded to Mr Robson on 16 July 2002. She said she
had given his representations “careful consideration”
but she could
not justify her intervention in the case. She remarked:
This case has been thoroughly reviewed by the appeals authorities and the
High Court. Although you have presented to me reasons why
you believe the
decisions made by these bodies have been limited in some way, I do not accept
that there is sufficient basis to your
claims to warrant my intervention in this
process.
[516] By this stage, of course, both Mr and Mrs Qiu were overstayers of
long standing. Mr Qiu had had his application for refugee
status declined. The
minister had declined to make a special direction. Mrs Qiu’s application
for refugee status had been
declined by the Refugee Status Branch and her appeal
to the RSAA had been unsuccessful. Her humanitarian appeal to the RRA had been
turned down, and a judicial review of that decision had failed. The minister
had also declined her application for a special direction
under s 130. But
nothing happened. The reason appears to be that the Immigration Service lost
contact with Mr and Mrs Qiu and could
not find them.
Events in 2005
[517] It was not until 12 May 2005 that a police check revealed some new information about the Qius. They were eventually located living at an address in Blockhouse Bay, Auckland, on 14 June 2005. At that time, Charles Wang, an immigration officer, served Mr Qiu with a removal order. He was taken into custody. On the same day, Mr Zhou served Mrs Qiu with a removal order. Mrs Qiu was not taken into custody because she had the care of her two young sons. A second son, Stanley, had been born in New Zealand just two months earlier.
[518] On 15 June 2005 Mr Wang conducted a humanitarian interview with Mr Qiu at the Auckland Central Police Station. During the course of the interview, Mr Qiu said he had two New Zealand-born children – one born in 2000, and one born in
2005. He also said that Mrs Qiu was his wife from China and that she had
come to New Zealand earlier under a false identity. He
did not refer to any
other children during this interview. Mr Wang concluded there were no
compelling reasons why Mr Qiu should
not be removed.
[519] Mr and Mrs Qiu then applied for judicial review of the Qiu removal
orders.
Evaluation of Mr Zhou’s and Mr Wang’s
actions
What has not been challenged
[520] Before we look at what is challenged, we emphasise what has not been
challenged.
[521] First, there is no challenge to the Government immigration policy.
It is to be assumed therefore that it, in general terms,
complies with New
Zealand statute law and with international obligations to which the New Zealand
Government has subscribed.
The evidence discloses that at all material
times Government immigration policy has included a humanitarian residence
policy.
[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] UKHL 4; [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) [2005] NZSC 38; [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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