Singh v Minister of Immigration [2011] NZCA 532 (21 October 2011)

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Singh v Minister of Immigration [2011] NZCA 532 (21 October 2011)

Last Updated: 27 October 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA662/2010 [2011] NZCA 532

BETWEEN AVTAR SINGH Appellant

AND MINISTER OF IMMIGRATION Respondent

Hearing: 8 September 2011

Court: Arnold, Ellen France and Wild JJ

Counsel: E Orlov for Appellant L M Fong for Respondent

Judgment: 21 October 2011 at 10 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

2. The appellant is to pay the respondent costs as for a standard appeal on a band A basis with usual disbursements.
   

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

[1] This is an appeal against a judgment of the High Court dismissing an application for judicial review by the appellant, Mr Singh. The application was dismissed by Venning J in a judgment delivered on 23 September 2010.[1] Mr Singh had applied for judicial review of the decision of an immigration officer that he intended making an order for removal of Mr Singh from New Zealand. As the empowering provision for the removal order when made was s 54 of the Immigration Act 1987, we will call the decision ‘the s 54 decision’.
[2] The parties agree that the appeal raises the issues whether the High Court erred in any of these four ways:

• (a) in holding that the test in s 47(3) of the Immigration Act 1987 need not be applied to the s 54 decision;
• (b) in the level of scrutiny it applied in judicially reviewing the s 54 decision;
• (c) in holding that the s 54 decision took into account the interests of the children, including the New Zealand citizen child, as a primary consideration; and
• (d) in referring in its judgment to the decision of the Removal Review Authority.

[3] In arguing the appeal, Mr Orlov focused on the rights of Taran Singh, the New Zealand citizen child of Mr Singh and his partner. He maintained this was a test case about the rights of a New Zealand citizen child when the child’s parents are ordered to be removed from New Zealand. Mr Orlov claimed there are “many” children in the same position.

Factual background

[4] Mr Singh is an Indian citizen. He entered New Zealand in January 1997 under a false Thai passport and was given a visitor’s permit. In February 1997 he revealed his identity and applied for refugee status. He was granted a series of work permits while awaiting the outcome of his application for refugee status. The application was declined and Mr Singh’s appeal to the Refugee Status Appeals Authority was dismissed in June 2001.
[5] In 2004 the Associate Minister of Immigration granted Mr Singh a two year work permit to enable him to test his eligibility for residence under the partnership policy. In February 2005 Mr Singh applied for residence under that policy, based on his marriage to Ms Mese Apiata. His residence application was declined on 26 May 2006 on the ground that his relationship with Ms Apiata was neither genuine nor stable. In fact, throughout, Mr Singh was in a relationship with his partner Ms Kulwinder Kaur, who is also a citizen of India. Their first child Taran was born in October 2004 and is therefore a New Zealand citizen by birth. Their youngest child Anoop Kaur was born in 2006 and is not a New Zealand citizen.[2] In July 2006 Mr Singh appealed to the Removal Review Authority. As it considered that the circumstances of Mr Singh, including his relationship with Ms Kaur and their two children, did not justify an humanitarian exception to the immigration rules, the Authority dismissed Mr Singh’s appeal in September 2007.
[6] Between August 2001 and July 2009 Mr Singh made no fewer than four applications to the Minister of Immigration for reconsideration of his status. All but one were declined. Dismissing the last application in July 2009, the Associate Minister of Immigration advised Mr Singh that he and his family should immediately take steps to depart to India or they would be removed from New Zealand.
[7] Ms Kaur is also unlawfully in New Zealand. After arriving in New Zealand in January 2002 she lodged an application for residence based on a relationship with Mr Gurvinder Singh Saluja. While that application was considered, Ms Kaur was granted a work permit which expired on 3 April 2003. Her residence application was declined on 9 June 2003, the case officer not being satisfied that her relationship with Mr Saluja was genuine and stable. As already pointed out, she was in a relationship with Mr Singh throughout.
[8] After Ms Kaur’s work permit expired on 3 April 2003 she appealed to the Removal Review Authority, which dismissed her appeal on 11 February 2005. Ms Kaur has been unlawfully in New Zealand since her work permit expired on 3 April 2003.
[9] On 8 December 2009 Mr Singh applied for judicial review of “the most recent decision of the Minister of Immigration dated 11 September 2009 refusing to intervene and/or grant a permit to the plaintiff”.[3]
[10] By way of relief Mr Singh sought orders directing the Minister of Immigration to grant him a valid permit and/or to reconsider his decision of 11 September 2009 “to take into account all matters then on the file”. We think the intention was to seek an order that the Minister reconsider his decision taking into account all matters then on the file.
[11] The matter came before Priestley J on 3 February 2010. In a bench note issued that day the Judge recorded these points:

• (a) Mr Singh does not challenge the Minister’s decision of 1 July 2009;
• (b) the challenge is to the alleged failure of the Minister to carry out an humanitarian interview; and
• (c) it was common ground that an humanitarian interview should take place.[4]

The Judge adjourned the proceeding to enable that interview to take place.

[12] An immigration officer carried out humanitarian interviews with Mr Singh

[12] and Ms Kaur on 8 April 2010. The officer conducted these interviews using an immigration form headed “Record of Personal Circumstances”.[5]
[13] The immigration officer who had conducted those interviews made the s 54 decision on 27 May 2010. For the moment, it is sufficient to set out the first and last paragraphs of that decision:

I have been asked to conduct a Record of Personal Circumstances interview with Avtar Singh and Kulwinder Kaur. While this interview would not ordinarily occur until after a removal order has been made and served, in this case I have used the interview as a means of obtaining information to inform my decision as to whether or not to make a Removal Order under section 54 of the Immigration Act 1987.

...

All in all, I am of the view that removal orders should be made in respect of Mr Singh, Ms Kaur and Anoop. Before doing so, however, I am prepared to provide the family with the opportunity of making arrangements to leave New Zealand within six (6) weeks from the date of this decision. If they fail to leave New Zealand within that period of time, removal orders will be served on them.

[14] As the last of those paragraphs indicated, removal orders had not been made. Pending the outcome of this appeal, they have still not been made.
[15] Following the immigration officer’s s 54 decision, Mr Singh amended his statement of claim, so that it challenged the s 54 decision on various grounds, the nub of which was that the immigration officer had failed to apply the test in s 47(3) of the Immigration Act 1987. The relevant parts of s 47 provide:

47 Appeal against requirement to leave New Zealand

(1) A person who is unlawfully in New Zealand may appeal to the Removal Review Authority against the requirement for that person to leave New Zealand.

...

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

...

[16] We end this factual summary by noting that this is not a case where the family would leave the New Zealand citizen child, Taran Singh, in New Zealand. That is recorded both in the s 54 decision[6] and in Venning J’s judgment.[7]

The High Court judgment

[17] We will not separately summarise the judgment of Venning J in the High Court. As we work through each of the four issues on appeal, we will refer to that judgment as it is relevant to each issue.

Issue One: error in holding that the s 47(3) test need not apply to the immigration officer’s s 54 decision?

[18] Section 54 gives the power to make a removal order. Section 58 confers the power to cancel a removal order that has been served, while the person named in the order is still in New Zealand.
[19] In Ye v Minister of Immigration[8] the Supreme Court held that decisions under both s 54 and s 58 required the application of the same criteria that the Removal Review Authority applies under s 47(3). That is, the decision maker must ask whether “there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand”.[9]
[20] Tipping J in Ye described the way the two sections operated in this way:

[28] ... Immigration officers making the discretionary decision envisaged by s 54 of the Act whether to make a removal order, must, to the extent practicable at that stage, consider whether the s 47(3) criteria apply to the case. If they do, the discretion should be exercised against making a removal order. The grant of a permit either under s 35A or some other appropriate mechanism will then be appropriate to regularise the overstayer’s continued presence in New Zealand. A less extensive examination is required if the case has already been through the RRA appeal process.

[29] An officer is not obliged to consider a request that a removal order be cancelled under s 58. But the officer must, when and to the extent s 47(3) issues have not already been addressed, consider cancellation via the humanitarian interview process or otherwise, and if the officer finds the s 47(3) criteria are established, the officer should likewise not proceed with removal. ...

[21] Parliament responded to Ye by amending s 58, with effect from 17 November 2009, to remove any obligation on the immigration officer making the decision to consider the s 47(3) criteria in that way. The amended s 58 included this subsection:

(6) If an immigration officer does consider cancelling a removal order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise, –

(a) may make a decision as he or she thinks fit; and

(b) in doing so, is not under any obligation, whether by implication or otherwise, –

(i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 47(3); or

(ii) to inquire into the circumstances of, or to make any further inquiries in respect of the information provided by or in respect of, the person who is the subject of the removal order or any other person.

[22] In Parmanadan v Minister of Immigration[10] this Court held that the effect of that amendment was to remove also any obligation on an immigration officer making an order under s 54 to consider the s 47(3) criteria. The Court reasoned in this way:[11]

It is true that the Supreme Court in Ye saw s 47(3) as relevant to the s 54 decision and that s 54 has not been amended. However, the specific provision in the current s 58 that s 47(3) is not required to be applied to cancellation means that the current legislative scheme is very different from what was under consideration in Ye. The comments made in Ye in relation to s 54 proceeded on the basis that it was not critical that s 47(3) be addressed at the s 54 stage if that was not practical and thus emphasised that the critical issue was that s 47(3) was addressed before removal was effected. Given that the legislature has now made it crystal clear that s 47(3) is not required to be considered at the s 58 stage (that is, at the ultimate step in the process before removal), it might be thought perverse to hold that it is required to be considered as part of the penultimate step (that is, when making an order under s 54). In this context we are of the view that there is no necessity for immigration officers to apply the s 47(3) test in deciding whether to make a removal order.

[23] Venning J held that he was bound by Parmanadan. He did not accept Mr Orlov’s attempt to distinguish Parmanadan on the twin grounds that it was a judgment upon an interlocutory application, and did not involve the interests of a New Zealand citizen child. Mr Orlov reiterated the same suggested distinguishing points to us. We do not accept them either, and for the same reasons the Judge gave. Although Mr Parmanadan’s application to the High Court was one seeking interim relief under s 8 of the Judicature Amendment Act 1972, that does not detract from the authority of the judgment, which was a considered, reserved judgment of this Court on a point directly in issue. The fact that Parmanadan did not involve the interests of a New Zealand citizen child cannot affect whether the s 47(3) test applied to s 54 or not. The fact that an affected child (or children) is a New Zealand citizen might affect the result of applying the test, but it could not affect whether the test applied.
[24] For two overlapping reasons it is neither necessary nor appropriate that we respond to Mr Orlov’s invitation that we depart from Parmanadan. First, the s 54 decision under appeal here is not the usual, comparatively mechanical, one. As the first paragraph of the decision records, it was based on the humanitarian interviews the officer had conducted, interviews that would normally occur after a removal order had been made and served, as a basis for any decision under s 58 cancelling the order.
[25] Secondly, and perhaps because, unusually, the humanitarian interviews had preceded the s 54 decision, Venning J went on to consider whether, if the s 47(3) criteria did apply to the s 54 decision, they had been met. That renders pointless consideration of a submission that the Judge erred in holding that the s 47(3) criteria did not apply.
[26] For those reasons we answer Issue One ‘no’.

Issue Two: error in the level of scrutiny applied on judicial review of the s 54 decision?

[27] Venning J held that his answer on Issue One, which we have upheld, was sufficient to dispose of the application for judicial review. That was because the application was predicated on the immigration officer’s failure to correctly apply the s 47(3) criteria. In case he was wrong in holding himself bound by Parmanadan, the Judge went on to consider application of the s 47(3) criteria to the officer’s decision under s 54, and the interview procedure on which it was based.
[28] The Judge did not specifically identify the level of scrutiny he considered applicable in doing this. He did remind himself of the approach to be taken in applying the s 47(3) criteria as outlined by the Supreme Court in Ye:[12]

That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. [See Creedy v Commissioner of Police [2008] 3 NZLR 7 at paras [31]–[32], where this Court, albeit in a different context, discussed the concept of exceptional circumstances.] It is unnecessary and undesirable to attempt to define the compass of the word “humanitarian”. It is unlikely to be difficult to decide whether the circumstances of a particular case fulfil that description. If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.

[29] Our difficulty in summarising Mr Orlov’s submissions on this issue reflects their discursive nature. Based on the judgment of Glazebrook J in this Court in Ye,[13] and that of the Chief Justice in the Supreme Court in Ye, Mr Orlov submitted that “a very deep look at the rights of a New Zealand citizen child is required”. He submitted that Venning J should have applied a “hard look” approach, adding “whilst there has been no authoritative statement from the Courts either way, the ‘hard look’ approach is to be preferred especially in the human rights context”.
[30] Mr Orlov then posed some rhetorical questions. He asked “if removal in this case is acceptable, what is unacceptable?”. Then he inquired “if the immigration officer’s decision here is upheld what is the point of judicial review?”. He opined “I cannot see a more compelling case to stop removal than this”.
[31] These questions and opinion invited us to embark on a substantive, merits based review of the decision of the immigration officer. We put this to Mr Orlov, suggesting that he was simply attacking the immigration officer’s balancing exercise. Mr Orlov’s response was to refer again to the judgment of Glazebrook J in this Court in Ye at [124] and [125]–[127], and in particular to submit that the appropriate test was that suggested by Glazebrook J:[14]

It is not possible to lay down any rigid rules as to the result of the balancing exercise. However, if ... 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.

[32] Mr Orlov contended that the immigration officer did not weigh the rights of the New Zealand citizen child. He failed to conduct a proportionality or balancing exercise. He failed to apply any test. His decision was plainly wrong.
[33] Contrary to Mr Orlov’s submission, this Court’s decision in Huang v Minister of Immigration[15] contains an authoritative statement on the appropriate level of review here, given that the s 54 decision was preceded by an humanitarian interview. This Court said:[16]

As to intensity of review, we therefore propose to follow the approach adopted in Puli’uvea. The Court should ensure that the best interests of an affected child were genuinely taken into account as a primary consideration but, beyond that, how conflicting considerations are weighed is for the decision maker and not the Court unless unreasonableness considerations can be successfully invoked.

[34] The reference in that passage is to the following part of the judgment in Puli’uvea v Removal Review Authority,[17] and we have set the relevant (emphasised) passage in its context:

Throughout the process in February 1995, the Immigration Service, as required by the directives given in November of the previous year in response to the Tavita judgment, did address those issues which the Convention and Covenant require to be addressed. No doubt, as the argument in this case and the affidavit from the psychologist show, different views will be held about the balance to be struck between the various considerations. That is not however a matter for us. The question which we have to address is whether there is any reviewable error of law in the decisions that have been taken or one of the decisions is so unreasonable that no reasonable immigration officer could have come to it.

The record does not demonstrate any error of law in the sense of failure to give consideration to the relevant requirements of the international texts. In particular the immigration officers did have regard to the position of the children, especially the New Zealand born children, as a primary consideration. Once again, as in 1993, it is the position of the children that is the primary matter supporting action which would favour the Puli’uveas. As well, the officers had regard to the impact of their 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.

The close and careful consideration of the position of the children and of the family (defined narrowly or widely) also leads us to reject any possible argument of unreasonableness.

[35] Finally, and most importantly, the Supreme Court in Ye held:[18]

The crucial issues turn on relatively straightforward principles of judicial review.

[36] It follows that Mr Orlov is not correct in submitting that Venning J erred in not applying a high or “hard look” level of judicial review. We answer Issue Two ‘no’.

Issue Three: error in holding that the immigration officer’s s 54 decision took into account the interests of the children, including the New Zealand citizen child, as a primary consideration?

[37] Mr Orlov also founded this third aspect of his argument on the judgment of Glazebrook J in this Court in Ye. In addition to the passage we have cited at [31], he placed particular reliance on these parts of Glazebrook J’s judgment:

[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.

...

[127] The assessment of detriment should be performed as far as possible from the perspective of the child. ...

...

[128] Any detriment to the child from the removal should then be balanced against the State’s right to control its borders. ...

...

[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. ...

[38] We agree with Ms Fong’s submission that Venning J was right to take his primary guidance from the Supreme Court’s judgment in Ye, in particular:

[25] It is appropriate in the light of NZ’s obligations under article 3(1) [of the United Nations Convention on the Rights of the Child (UNCRoC)], to interpret the relevant provisions of the Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision-making processes. The words “a primary consideration” in art 3(1) do not denote how this consideration ranks against any other relevant consideration such as the public interest. The child’s interests are always important; but what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test.

And this statement of the correct legal approach to the best interests of the citizen child:

[61] ... The proper approach was not to look at the best interests of the children on the premise that their mother was to be removed to China but rather to ask whether their mother should be removed from New Zealand in the light of the best interests of her children.

[39] Venning J then referred in some detail to the immigration officer’s s 54 decision, in particular to its consideration of what Mr Singh had told the officer about the living conditions and education prospects for the children if Mr Singh and his family returned to his village in the Punjab province of India. The Judge noted also the officer’s consideration of New Zealand’s obligations under the relevant international conventions and covenants. Venning J identified what those were, just as the officer had done. The Judge noted the officer’s acceptance that better educational, employment, health, housing and other opportunities, and a higher standard of living, were available to the family in New Zealand, but also the officer’s assessment that:

... these factors are not compelling or exceptional such that removal orders should not be made against Mr Singh, Ms Kaur and Anoop.

In terms of Taran’s and Anoop’s best interests, which have been emphasised in the information provided to me, they are a primary, but not the paramount, consideration in my decision-making.

While Mr Singh and Ms Kaur obviously wish Taran and Anoop to benefit from educational and other opportunities available to them in New Zealand, I am satisfied that relocating to India with their parents would not pose any unacceptable risks to them in terms of their physical, mental, spiritual and social development (Article 27.1 of UNCRoC). The information before me indicates that both children are healthy and normal and, with the love and support of their parents and extended family, they would – given their young ages (5 and 3 respectively) – be able to integrate into Indian society.

[40] Mr Orlov put to us, as he had to Venning J, that the fact that the conditions and prospects for the New Zealand citizen child would be less advantageous in the Punjab was sufficient to entitle the whole family to remain in New Zealand. Ms Fong was entitled to submit that Mr Orlov was really submitting that a consideration of the best interests of the New Zealand citizen child was the only consideration here. For example, Mr Orlov’s approach had no regard to the integrity of New Zealand’s immigration laws.
[41] We can see no error in Venning J’s approach. Contrary to Mr Orlov’s submission, the Judge satisfied himself that the immigration officer had considered the interests of both children as a primary consideration, and was alive to the fact that Taran was a New Zealand citizen and thus entitled to stay in New Zealand. Like the immigration officer, the Judge acknowledged that living in the Punjab province of India would be less advantageous for the family, in particular the New Zealand citizen child. But the Judge pointed to this passage in the Supreme Court’s judgment in Ye:[19]

The qualification of the word “harsh”, by the word “unduly” [in s 47(3) of the Act], recognises that there may be some degree of harshness in removing an overstayer from New Zealand. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. Undue in this context means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system. ...

[42] Appropriately, Venning J observed that Mr Singh had been unlawfully in New Zealand since 2006, and prior to that had been in New Zealand on a series of temporary permits not designed to enable him to settle here permanently. Despite that, Mr Singh and Ms Kaur had produced two children in New Zealand and settled into society here. The Judge observed:

[46] ... The consequence of not regularising their immigration status to enable residence is that they now face the prospect of being removed from that settled environment and put into one that is inevitably going to be less advantageous to them and their children if they accompany them. Such an outcome cannot be said to fall well outside the normal run of circumstances found in overstayer cases generally.

That observation gains support from Mr Orlov’s acceptance in argument that there are “many” children in the same position as Taran, and from his consequent attempt to advance this as a test case.

[43] As Ms Fong submitted, Mr Orlov’s argument really reduces itself to a submission that the means by which the s 54 decision was reached cannot be right, because the decision is plainly wrong. We are satisfied Venning J was correct in holding that the immigration officer did take the interests of the two children into account as a primary consideration, and was aware that one of the children had New Zealand citizenship. We answer this issue ‘no’.

Issue Four: error in referring to the Removal Review Authority’s decision?

[44] This issue is somewhat subsumed in the previous three. Perhaps for that reason, Mr Orlov’s submissions did not separately address it.
[45] At two points in his judgment Venning J referred to the fact that the Removal Review Authority had previously made a decision adverse to Mr Singh.[20] In the second reference he noted that the Supreme Court in Ye[21] had observed that “a less extensive examination is required if the case has already been through the RRA appeal process”. The Judge noted that Taran had been born by the time the Authority made its decision. The development in the interim was that Taran had now started school.
[46] Mr Orlov made the point that Mr Singh had represented himself before the Authority, and that there was “no real evidence” of the circumstances of the two children before the Authority. That seems not to be entirely correct, because a section of the Authority’s decision deals with Mr Singh’s children.[22] We see no error in Venning J referring to the Authority’s decision as he did. Indeed, the converse is more likely true. In terms of the two children, the focus of both the immigration officer’s s 54 decision, and Venning J’s judgment, was on the up-to-date position of the children, as covered in the humanitarian interviews that preceded the s 54 decision.
[47] We also answer this fourth issue ‘no’.

Result

[48] We have answered each of the four issues on appeal ‘no’. In short, Mr Singh has not established that Venning J erred in any of the respects he contended. Accordingly, the appeal is dismissed.
[49] Mr Singh is to pay the respondent costs as for a standard appeal on a band A basis with usual disbursements.

Solicitors:
Equity Law, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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[1] Singh v Minister of Immigration HC Auckland CIV-2009-404-8106, 23 September 2010.

[2] Section 6(1) of the Citizenship Act 1977 confers no citizenship for children born in New Zealand after 1 January 2006 where neither parent was a New Zealand citizen or entitled to be in New Zealand indefinitely.
[3] Paragraph 15 of Mr Singh’s statement of claim dated 8 December 2009.

[4] An humanitarian interview is not a statutory process. Consequent upon this Court’s judgment in Tavita v Minister of Immigration [1994] 2 NZLR 257 it was introduced to ensure that New Zealand’s international obligations were taken into account.

[5] In [34] of his judgment Venning J recorded: “In Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 the Court had criticised the form used by the officers to record the applicant’s personal circumstances. The Supreme Court considered the form failed to address or direct the officer’s mind to the relevant s 47(3) criteria. The form for the humanitarian interview carried out in this case was amended following Ye. It has to be observed, however, that while the form is now more detailed insofar as it seeks further information about the circumstances of the family and children in particular, it still does not expressly refer to the s 47(3) criteria.”
[6] At [35].
[7] At [36] and [48].
[8] Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
[9] The relevant wording of s 47(3), set out in [15] above.
[10] Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424.
[11] At [27].
[12] At [34].
[13] Ye v Minister of Immigration [2008] NZCA 291; [2009] 2 NZLR 596.
[14] At [130].
[15] Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700.
[16] At [67].
[17] Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA) at 522.
[18] At [11].
[19] At [35].
[20] At [38] and [54].
[21] At [28].

[22] Paragraphs [31]–[35] headed ‘The Appellant’s Children’, of the Authority’s decision of 20 September 2007.