Liu v Chief Executive of Department of Labour [2012] NZHC 2753; [2012] NZAR 1012 (24 October 2012)

Last Updated: 29 October 2012

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PLAINTIFF'S PARTNERS OR CHILDREN.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2012-409-000896 [2012] NZHC 2753

BETWEEN ALAVINE FELIUAI LIU Plaintiff

AND CHIEF EXECUTIVE OF DEPARTMENT OF LABOUR

Respondent

Hearing: 1 October 2012

Counsel: A G James for Applicant

L M Fong and L M Inverarity for Respondent

Judgment: 24 October 2012

_JUDGMENT1 _{OF WHATA J}

[1] Mr Liu was deported to Samoa. He was unlawfully resident in New Zealand and had been recently convicted of assaulting his female partner, M. Mr Parr, the immigration officer, interviewed both M and Mr Liu prior to making a decision not to cancel a deportation order. A focal point for his investigation was the status of

their relationship and the interests of their children, A and B.2 Mr Parr also had

regard to Mr Liu’s criminal history, a protection order against Mr Liu in favour of M and her children and a family violence report. As he was required to do, he identified the international conventions that he considered in reaching a decision not to recommend cancellation of the deportation order. He does not refer to art 9 of the

_{United Nations Convention on the Rights of the Child. Article 9 states:}

1 _{This is an anonymised version of the original judgment.}

2 _{Mr Liu is the biological father of A. B is M’s child from a previous relationship.}

LIU V CHIEF EXECUTIVE OF DEPARTMENT OF LABOUR HC CHCH CIV 2012-409-000896 [24 October

2012]

Article 9

1. States Parties shall 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. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

[2] Mr Liu contends that Mr Parr should have taken into account art 9.1 and erred by not doing so. He also raises concerns about prejudicial material, apparent bias and failure to have regard to the wishes of M. But the central issue in this case is whether Mr Parr erred by not giving specific regard to art 9.1.

Background

[3] Mr Liu is a Samoan citizen. He travelled to New Zealand in April 2006 and was joined by his then wife, D, and his two daughters, in December of the same year. While in New Zealand they had a third daughter, and then a fourth daughter in August 2008, who was adopted out to extended family. Mr Liu’s immigration history could be described as patchy. He held work permits between 20 June 2006 and 4 February 2008. A further work permit was declined, so that between 5

February 2008 and 16 June 2009 Mr Liu resided in New Zealand unlawfully. Mr Liu

and D separated in early 2008 but a July police report shows that Mr Liu was allegedly harassing D and that she had taken out a protection order against him.

[4] In February 2009, Mr Parr was assigned Mr Liu’s file, and he interviewed Mr Liu and his new partner, M. They had recently had a son, A, on 4 February 2009 and Mr Parr was satisfied that their relationship was genuine and stable. On that basis, in May 2009 Mr Parr recommended that Mr Liu be granted a one year work permit under s 35A of the Immigration Act 1987. The work permit was granted and extended for a further year with an anticipated expiry date of 17 June 2011.

[5] On 6 September 2010 Mr Liu assaulted M and was convicted and sentenced to supervision and community work. As a result of the conviction, Mr Parr determined that there was cause to deport Mr Liu under s 157 of the Immigration Act

2009. On 13 January 2011 he served a deportation notice on Mr Liu, but this was later cancelled to account for administrative error. Nevertheless, since 18 June 2011

Mr Liu has resided in New Zealand unlawfully. He did not exercise his right of appeal under s 206 of the Act against his liability for deportation. Mr Liu had, however, sent in a letter to the Immigration Service, care of Mr Parr, seeking to appeal under s 157(2) of the Immigration Act, the deportation liability notice. It seems from the record that was overtaken by Mr Parr’s acknowledgment that the previous notice had been cancelled for administrative error. In any event, due to his assumed unlawful status, Mr Parr interviewed Mr Liu on 16 September 2011 and was again satisfied that the relationship between him and M was genuine. He advised Mr Liu to request a visa under s 61 of the Act no later than 11 October 2011. No request was made.

[6] Mr Liu was arrested on 3 November 2011 for again assaulting M. On 19

December 2011 Mr Parr spoke to M and she confirmed that she and Mr Liu had separated and that she had obtained a protection order in her and her children’s favour. She was not at that time prepared to support a s 61 visa for Mr Liu.

[7] On 3 January 2011 Mr Liu was again arrested for further offending against M and remanded in custody at the Christchurch Prison. He was later convicted and sentenced for, among other things, two charges of male assaults female.

[8] By that stage, Mr Liu had been served with a deportation liability notice on the ground that he was unlawfully in New Zealand and had exhausted his rights of appeal.3

[9] As Mr Parr was aware of Mr Liu’s personal circumstances and that they were relevant to New Zealand’s international obligations, he proceeded to consider whether to exercise his statutory discretion to cancel the deportation order under s 177 of the Act.

[10] As part of that process, Mr Parr interviewed M on 6 January 2012. Mr Liu was separately interviewed after service of the deportation notice on 4 January 2012, and again on 23 March 2012. Mr Parr particularly sought comment from them on the following matters:4

42.1 the status of their relationship;

42.2 Mr Liu’s relationship with [B] and with his parents and siblings in

New Zealand;

42.3 whether Mr Liu posed a risk of violence to [A] or [B];

42.4 their views on the best interest of [A] and [B]; and

42.5 potential ways in which Mr Liu’s relationship with [A] and [B] could be maintained if Mr Liu was deported.

[11] M says that in the course of the interview, Mr Parr made inappropriate comments, saying that he could not understand why Mr Liu treated such a nice person as herself in the way that he did and predicting that within the next year she would find another man and remarry. She says that in this context Mr Parr told her about his personal experience as a police officer and that he would go drinking with airline hostesses and pilots. She said that Mr Parr told her about a relationship he had had with an air hostess called Candy who was later arrested for drug smuggling in Australia.

[12] Mr Parr accepts that he talked generally about her work as a flight attendant, and about his former relationship. He says he told her this because of the difficult

3 _{On 4 January 2012.}

4 Affidavit of Geoffrey Parr, 3 August 2012.

hours that Candy had worked on the trans Tasman flights. He denies that he said M should remarry. He did mention in passing that in the past police officers had sometimes mingled with flight attendants at parties. He accepts that the general conversation following the interview was not appropriate.

[13] Mr Parr reached a preliminary decision on 6 January 2012 and discussed the same with his manager, Ms Jackson. It was agreed that further information and consideration was necessary. He then spoke to Mr Liu’s sister, and interviewed M again on 14 March 2012.

[14] He received correspondence from counsel for Mr Liu and there was a further interview with Mr Liu on 23 March 2012. While he did not interview Mr Liu’s parents, it was clear to him that Mr Liu enjoyed a close relationship with his family in New Zealand. After meeting again with Mr Liu and his counsel, Mr Parr formed the view that the deportation order should not be cancelled. Mr Parr confirms that the draft decision was reviewed by a legal team and that his decision specifies each international obligation that he considered was relevant. It does not refer to art 9.1 of the United Nations Convention on the Rights of the Child. He states that:

52. My decision also specifies the source documents that I relied upon, including:
    

52.1 Mr Liu’s criminal history;

52.2 My records of interviews with Mr Liu on 4 January 2012 (incorrectly referred to as 4 December 2011 in my decision) and 23 March 2012.

52.3 My records of interviews with [M] on 6 January 2012 and 14

March 2012.

52.4 an email from counsel for Mr Liu dated 17 February 2012, and written submissions handed to me on 23 March 2012 and 5 April 2012;

52.5 The protection order against Mr Liu, in favour of [M] and her children, and the family violence report.

[15] In forming his view he says:

(a) He did not give excessive weight to the residence of his former wife and his three daughters in Samoa.

(b) He did not ignore M’s views in favour of Mr Liu remaining in

Christchurch.

(c) He noted the police summary of facts in relation to the assault charge which says that A was in the house when the assault and the breach of the protection order were committed.

Jurisdiction

[16] The jurisdiction to cancel a deportation order is set out at s 177 of the

Immigration Act 2009 (“the Act”). The provision states:

177 Deportation order may be cancelled

(1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.

(2) Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand's international obligations.

(3) If an immigration officer does consider cancelling a deportation 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 207; or

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

(4) Whether or not an immigration officer considers cancelling a deportation order,-

(a) he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and

(b) section 23 of the Official Information Act 1982 does not apply in respect of the decision.

(5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record-

(a) a description of the international obligations; and

(b) the facts about the person's personal circumstances.

[17] Counsel for the Crown has helpfully described the overall scheme of the Act and I agree with the Crown submissions that the discretion inferred by s 177 is best understood in light of that scheme.

[18] Section 3 of the Act states the purpose of the Act, namely:

3 Purpose

(1) The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.

(2) To achieve this purpose, the Act establishes an immigration system that-

(a) requires persons who are not New Zealand citizens to- (i) hold a visa to travel to New Zealand; and

(ii) hold a visa and be granted entry permission to stay in New Zealand; and

(b) provides for the development of immigration instructions (which set rules and criteria for the grant of visas and entry permission) to meet objectives determined by the Minister, which may include objectives such as-

(i) contributing to the New Zealand workforce through facilitating access to skills and labour; and

(ii) supporting families; and

(c) allows for the management of the immigration aspects of border control, by setting requirements that apply to persons arriving in New Zealand or who are intending to arrive in New Zealand; and

(d) provides a process for implementing specified immigration- related international obligations; and

(e) includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that-

(i) enable immigration officers to gather information in relation to visa holders, employers, and education providers to determine compliance with obligations in respect of the system; and

(ii) prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security; and

(f) establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals; and

(g) supports the settlement of migrants, refugees, and protected persons.

[19] I further agree with Crown counsel that there are various protections built into the Act which allow immigrants to challenge adverse decisions as they arise.5

These available protections are subject to specified time constraints, and this is relevant to, for present purposes, the discretionary assessment that must be made, in the event that an error is identified. The short point is, as the Crown submits, the Immigration Act is designed to ensure that decisions and challenges to those decisions are dealt with expeditiously.6

[20] Turning then to s 177, the discretion is, as recorded at subs (1), “an absolute discretion.” Absolute discretion is defined at s 11 of the Act as follows:

11 Meaning of absolute discretion of the decision maker

If a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that-

(a) the matter or decision may not be applied for; and

(b) if a person purports to apply for the matter or decision, there is no obligation on the decision maker to-

_{(i) consider the purported application; or}

5 _{Refer Part 7 of the Act.}

6 Referring also to Babulal v Chief Executive, Department of Labour HC Auckland

CIV 2011-404-1773, 29 September 2011 at [12].

(ii) inquire into the circumstances of the person or any other person; or

(iii) make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and

(c) whether the purported application is considered or not,-

(i) the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies; and

(ii) section 27 of this Act and section 23 of the Official Information Act 1982 do not apply in respect of the purported application.

Argument

[21] Mr James made the following primary submissions on behalf of Mr Liu:

(a) Mr Liu enjoyed a close relationship with his son A, including child

care responsibilities. This was affirmed by A’s mother, M.

(b) The article demands that the state shall ensure that a child is not separated from a parent, unless it is in the best interests of the child to do so.

(c) Mr Parr failed or refused to have regard to art 9 in reaching his decision, contrary to authority directly on point (and relating to a decision previously made by Mr Parr) namely Ewebiyi v Parr.7

(d) A’s rights must weigh heavily in the decision making process and while other relevant covenants under UNCROC have been taken into account, art 9 is the most relevant given the facts, namely the enforced separation of Mr Liu as a parent from his child.

(e) Mr Parr did not give sufficient weight to the views of M as a victim of the offending for which Mr Liu was convicted, and while her views

_{are not a mandatory consideration, failure to have regard to those}

7 Ewebiyi v Parr HC Christchurch CIV 2011-409-002010, 7 December 2011.

views bears on the reasonableness of Mr Parr’s decision.

(f) There is evidence of bias and pre-determination by Mr Parr, having regard to the inappropriate comments he made concerning the best interests of M and A. In particular, Mr James highlighted that it was inappropriate for Mr Parr to suggest to M that she will find another man to marry. It cannot be right for an immigration officer to make these comments while at the same time properly having regard to international obligations including the maintenance of familial relations.

[22] Overall he submits that the decision to deport Mr Liu was demonstrably unreasonable when proper consideration is given to the best interests of the child, the views of M, both the mother of the child and the victim of Mr Liu’s abuse and there being no other compelling factors that would outweigh those interests and views.

Respondent’s argument

[23] Ms Fong essayed the factual background to this matter noting in particular that:

(a) Mr Liu did not exercise rights of appeal available to him, and did not apply under s 61 for a visa when invited to by Mr Parr in September

2011.

(b) There were two incidents of assault thereby raising legitimate concerns for the safety of M and her children.

(c) The criminal activity, however, was not the basis for the issuance of a deportation notice. Rather the notice was issued because Mr Liu was resident in New Zealand unlawfully.

(d) Mr Parr created a record of personal circumstances following twice interviewing the applicant and the mother of his three year old son

and after considering available documentary information including submissions by Mr Liu’s counsel and following two internal reviews of his decision.

(e) Against this background, Mr Parr declined to cancel the deportation order and in that decision he lists the international obligations that he was required to consider as relevant as well as the sources of his information as required by s 177(5) of the 2009 Act.

[24] Turning to the key arguments raised by Mr James, Ms Fong submits:

(a) The Supreme Court in Ye8 endorsed the observations by Glazebrook J in the Court of Appeal dealing with the relevance of art 9. In particular Ms Fong highlights the following passage from Glazebrook J’s decision:9

[69] The appellants, in support of their argument, refer to art 9 of the 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 para [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, p 181).

(b) The irrelevance of art 9 was affirmed by the High Court in Zanzoul by

Dobson J dealing with a decision of the Removal Review Authority under s 47 (although Dobson J did state that this did not mean the

8 _{Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.}

9 Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596.

RRA committed an error by referring to it).10

(c) There is support for this from the UK Supreme Court. Baroness Hale in ZH (Tanzania) v Secretary of State for the Home Department11 draws a distinction between compulsory separation of a child from her parents, which must be necessary in her best interests and the separation of a parent from his child, for example, by detention, imprisonment, exile, deportation or even death.

[25] As to the other matters raised by Mr James, she submits that reference to information about family violence, including the violence report cannot be said to be prejudicial and any information supplied by Mr Liu’s former wife was given only limited significance. As to allegations of predetermination and bias, Mr Parr’s discussions with M show that he empathised with her rather than demonstrated prejudice. As to the weight to be given to a victim’s statements, there is no strict requirement to have regard to a victim’s view, but Ms Fong accepted that they were a factor to be taken into account with the weight for the decision maker. On the general issue of the weight given to A’s interests, Ms Fong points to a range of authorities that make it clear that the weight to be given to the best interests of the child, and conflicting considerations, is a matter for the decision maker, consistent

with orthodox standard of judicial review.12 Citing Lang J in Babulal, Ms Fong put

it to me that a “harder look” is particularly inconsistent with the terms of s 177.

[26] Finally, she submits that if the Court were to find that art 9.1 is relevant, any failure to refer to it was not material. Ms Fong says that Mr Parr approached the assessment on the basis that the child’s best interests were a primary consideration. Moreover, the extensive interviews and consultation undertaken by Mr Parr clearly evinced the care taken by Mr Parr in evaluating the circumstances and what was in

_{the best interests of A.}

10 _{Zanzoul v Removal Review Authority HC Wellington CIV 2007-485-1333, 9 June 2009, at [146].}

11 _{ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 at 179.}

12 Citing Ye v Minister of Immigration [2009] NZSC 76; Puli’uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA); Huang v Minister of Immigration [2008] NZCA 377; Babulal v Chief Executive Department of Labour HC Auckland CIV 2011-404-1773, 29 September 2011; and Singh v Minister of Immigration [2011] NZCA 532.

[27] In terms of the Court’s discretion, Ms Fong highlighted to me that:

(a) Mr Liu did not exercise his right to full consideration of his humanitarian circumstances before the Immigration Protection Tribunal; and

(b) Any errors are immaterial and reconsideration would inevitably lead to the same result.

Assessment

[28] The jurisdiction of this Court on review of the immigration officer in this case is limited. Section 177 confers a broad discretion on immigration officers to consider whether a deportation order should be cancelled. An immigration officer need not give reasons and is not required to apply any particular test. This represents

a marked departure from the interpretation of the previous equivalent section,13

where a presumption of conformity with international obligations demanded that consideration be given to a humanitarian response.14

[29] But under s 177(3), where the personal circumstances of the person subject to a deportation order is relevant to New Zealand’s international obligations, an immigration officer:

“must have regard to any relevant international obligations, ...”

(Emphasis added)

[30] The officer must also record a description of the international obligation and the personal circumstances.

[31] These legislative changes are therefore, in some respects, more prescriptive than the earlier Acts.15 Section 177(3) now directly incorporates relevant

_{international obligations into the decision making process as mandatory relevant}

13. See Parmanadan v Minister of Immigration [2010] NZCA at [7], dealing with an equivalent amendment to s 58.

14 _{Ye v Minister of Immigration [2009] NZSC 76 at [24] and [25].}

15 See Parmanadan.

considerations. While an immigration officer may weigh those considerations as he or she thinks appropriate to the circumstances, he or she must give them due consideration. Significantly, the Court is now directly engaged in reviewing the immigration decision for the purpose of deciding whether all relevant obligations have been taken into account, rather than applying interpretative presumption to reach that point. The Court is therefore not concerned about harmonising statutory policy with international obligations (and correlative rights), but can proceed on the basis that having regard to all factually relevant obligations serves that statutory policy.

[32] Whether an international obligation is relevant in this case depends on the personal circumstances of the proposed deportee. Plainly the Government’s obligations under UNCROC are engaged given the effect of Mr Liu’s deportation on Mr Liu’s son A. An added factor in this case is that Mr Parr considered that the risk of ongoing family violence was relevant to his determination. In reaching his decision, Mr Parr inquired into the history of family violence; indeed he specifically examined “whether Mr Liu posed a risk of violence to [A] or [B]”, and one of the source documents he relied upon was the “protection order against Mr Liu, in favour of [M] and her children, and the family violence report”.

[33] Also, it was accepted in Mr Parr’s decision that the following rights and

duties are engaged:

_{United Nations Convention on the Rights of the Child (UNCROC)}

Article 3 - In all actions concerning children, their best interests shall be a primary consideration;

Article 5 - the State shall respect the responsibilities, rights and duties of parents;

Article 7 - the right to know and be cared for by parents as far as possible;

Article 8 - the right of the child to preserve his or her identity including family relations without unlawful interference;

Article 16 - no child shall be subject to arbitrary or unlawful interference with his or her family;

Article 18 - the State is to use its best efforts to ensure recognition of the principle that both parents have common responsibilities for the up-bringing and development of the child;

Article 19 - the State shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence;

Article 24 - the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health;

Article 27 - the right of every child to a standard of living adequate for the

child’s physical, mental, spiritual, moral and social development.

_{International Convention on Civil and Political Rights (ICCPR)}

Article 17 - the right not to be subjected to arbitrary or unlawful interference with family;

Article 23 - the family is the natural and fundamental group unit of society and the State;

Article 24 - the right of every child to measures of protection by the State, society and their family as required by their status as a minor.

International Convention on Economic, Social and Cultural Rights

_(ICESCR)

Article 6 - the right to work;

Article 10 - the widest possible protection and assistance should be given to the family which is the natural and fundamental group unit of society; special measure of protection should be given to children and young persons without any discrimination for reasons of parentage or other conditions;

Article 11 - the right to an adequate standard of living for himself and family;

Article 12 - right to highest attainable standard of physical and mental health;

Article 13 - the right to education

[34] With respect to the careful submissions of the Crown, I cannot reconcile those concessions with the assumed irrelevancy of art 9, which among all the articles appears most engaged by the facts of this case, that is the deportation of Mr Liu causing the child, A, to be separated from his parent. Given its central importance to Mr Liu’s case, it is worth repeating that art 9.1 requires that the State must:

... 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. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

[35] Plainly art 9.1 contemplates separation in cases of domestic violence, hence the clause refers to cases involving abuse or neglect. But art 9.4 also states:

Where such separation results from any action initiated by a State Party, such as... deportation...

[36] As Fogarty J said in Ewebiyi:16

The phrase ... “such separation” makes it plain that Article 9.1 is intended to apply to separation by reason of deportation of a parent.

[37] Linguistically, art 9.1 deals with the genus of ‘separation’, and deportation is

one kind of such separation.

[38] I accept that Glazebrook J in Ye at [70] endorsed the observation made by Baragwanath J that art 9.1 was intended to apply to domestic matters and not to immigration matters.17 Dobson J also cited this passage in Zanzoul to conclude that

art 9 is irrelevant to the immigration context.18 But if Dobson J was intending this

observation to apply in all immigration decisions, then I am respectfully unable to agree with that conclusion for the following reasons.

[39] First, Glazebrook J’s comment was directed at the attempt by counsel in Ye to elevate the rights of the child from a primary consideration to a trump or “the” primary consideration. She rejected that attempt and this was endorsed by the Supreme Court.19 But the comment was not, in my view, finally determinative of the relevance of art 9 to immigration decisions in New Zealand. Notably at [103] of the same judgment, Her Honour rejects the Crown contention that “where there is

removal of a parent, it is the parent’s choice whether the citizen remains or goes with

_{the parent”. She states:}

16 _{Ewebiyi v Parr at 52.}

17 _{I address Baragwanath J’s reasoning below at [49]-[50].}

18 _{Zanzoul v Removal Review Authority at [144]-[146].}

19 Ye v Minister of Immigration [2009] NZSC 76 at [24].

... 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 the UNCROC (see above at para [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.

[40] Plainly Glazebrook J assumed art 9 at least had normative relevance in the immigration context.

[41] Second, I am fortified in my view by the unequivocal statement by the Court of Appeal in Huang that art 9 was relevant to decisions made under the 1987 Act.20

The Court of Appeal in Puli’uvea also proceeded on the basis that art 9 was relevant but not directly engaged in that case, because the deported parents could take the children with them.21

[42] Third, art 10 also specifically links to the obligation under art 9 paragraph 1 in the following terms:

Article 10

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph

1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

_{(Emphasis added)}

20 _{Huang v Minister of Immigration at [29].}

21 Puli’uvea v Removal Review Authority at 328.

[43] Article 9.1 is therefore prima facie relevant to the immigration decisions addressed by art 10.

[44] Fourth, according to our jurisprudence, the core value affirmed by the Convention in the context of immigration decisions is that the “interests of New Zealand citizen children are always regarded as an important consideration in the decision-making processes”.22 That value must surely guide the interpretation of UNCROC itself; certainly the preamble compels such a conclusion (as I will discuss below). In short, an interpretation of the Convention that is consistent with this

value is to be preferred over one that is not. Turning then to the text, there is nothing in the language of art 9.1 to suggest that immigration decisions are in a special class, excluded from its ambit. The affirmation of the interests of New Zealand children as an important consideration is, in my view, concordant with the proposition that art

9.1 is relevant to deportation decisions, where the interests of the child are most obviously and adversely affected by separation.

[45] Fifth, I do not agree with the Crown argument that drafting structure of arts 9 and 10 remove art 9.1 from consideration in the immigration context. This is said to be supported by Baroness Hale’s observation in ZH that art 9 draws a distinction between compulsory separation of a child from her parents, which must be necessary in her best interests, and separation of a parent from his child for example by deportation. But the Baroness was dealing with the potential application of a domestic statute, the Children Act 1989, to the immigration case before her. She was not asserting that article 9(1) was irrelevant to all immigration deliberations. Indeed

she affirmed:23

Nevertheless, even in those decisions, the best interests of the child must be a primary consideration.

[46] Sixth, even I am wrong in this, I decline to follow such a strict bifurcated approach. Article 9.1 affirms a basic principle, inherent and overt in the language of

_{the Convention, that a child should be raised within a familial context unless it is not}

22 _{Ye v Minister of Immigration [2009] NZSC 76 at [25].}

23 ZH (Tanzania v Secretary of State for the Home Department at 179.

in their best interests to do so. The preamble asseverates the same principle in the following way:

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

...

Have agreed as follows:

...

[47] The principle then finds expression in the articles taken into account by the

Crown, including (in addition to arts 9 and 10):

Article 3

...

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

...

Article 5

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

...

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

...

Article 8

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

...

Article 16

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.

...

Article 18

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

...

(Emphasis added)

[48] The central role and function played by parents and the importance of a

child’s link to them is then affirmed in arts 14(2), 22(2), 23(3), 24(2)(e), 27(2), 29(c),

37(c).

[49] I appreciate that Baragwanath J said in Ding24 that the Chairman of the

Working Group declared that article 10 not 9, was to govern immigration. His

_{Honour cited a passage from Detrick, dealing with the report of the Working Group}

24 Ding v Minister of Immigration (2006) 25 FRNZ 568 at [141].

on a precursor to art 9. The passage in Detrick states (art 6 is now art 9 and art 6 bis

is art 10):25

203. After the adoption of the article, the Chairman made a statement for the report. The declaration reads as follows:

“It is the understanding of the Working Group that article 6 of this Convention is intended to apply to separations that arise in domestic situations, whereas article 6 bis is intended to apply to separations involving different countries and relating to cases of family reunification. Article 6 bis is not intended to affect the general right of States to establish and regulate their respective immigration laws in accordance with their international obligations.”

[50] To the extent that Baragwanath J was indicating that art 9.1 was thereby irrelevant to immigration decisions, I must respectfully disagree. I accept that the passage quoted by Baragwanath J affirms a general drafting desire to separate out domestic from international separations. But art 9.1 and its underlying value informs the treatment both of domestic and international separation. Article 9.3 deals most specifically with issues relating to domestic separation. Article 9.4 deals with State driven separation, including deportation. Article 10 then, in giving effect to art 9.1 deals with interstate movement of children and parents. This intent, I think, was

captured in the following passage in Detrick:26

8. It will be recalled that paragraphs 1 and 2 of article 6 [article 9] relating to the question of the determination of the place of residence of the child were adopted by the Working Group last year. At the present session, the discussions which led to the adoption of paragraphs 3 and 4 of article 6, part of article 6 bis [article 10] and article 6 ter, focused on the proposals and amendments thereto relating to various problems which arise from family separation, such as the right of the child to maintain relations with his parents, the question of family reunification and the illegal abduction of children by one parent. It was also stressed that the national and international aspects of the question should be dealt with separately. All the proposals relating to these problems were considered simultaneously.

9. The right of the child who is separated from one or both parents, to maintain relations with both parents, was generally recognized, but in the view of some speakers, reference should be made to exceptional circumstances. The exchange of views on that question led to the adoption of paragraph 3 of article 6.

10. It was suggested that the draft Convention should also contain provisions dealing with cases where family separations result from actions

25 Sharon Detrick The United Nations Convention on the Rights of the Child: A Guide to the

_{“Travaux Preparatoires” (Dordrecht, Martinus Nijhoff, 1992, at 181.}

26 Ibid, at 191-192.

initiated by States. It was further stressed, in this connection, that there was a need to ensure that adequate information be provided to the family concerning the whereabouts of the absent parent or child. Various opinions were voiced as regards the type of State action which could lead to family separations. The question was also raised as to whether it was necessary to draw up a list of those actions. The discussions on these points led to the adoption of paragraph 4 of article 6.

[51] And further:27

20. During the discussions, it was suggested that the text of the first paragraph of the proposal by the representative of Australia relating to the right of the child who is separated from one or both parents to maintain relations with both, could be adopted by the Group as paragraph 3 of article

6, with the deletion of the words “and regardless of whether the parents and the child reside in different States.” It was said in this connection that the

international aspects of the question should be dealt with in a separate article. The Group agreed to the adoption of the paragraph on this basis.

21. Discussion on the proposals relating to action taken by States which result in family separations, led to the adoption of paragraph 4 of article 6.

...

28. The paragraph as orally revised was adopted as paragraph 4 of article 6.

29. The text of paragraph 4 of article 6, as adopted, may be found in annex I.

30. The discussion on the question of family reunification led to the adoption of part of paragraph 2 and 3 of article 6 bis.

...

39. Discussions on the question of the right of the child when parents live in different States to maintain contacts with both parents, led to the adoption of paragraph 3 of article 6 bis.

[52] The outcome of the discussion recorded by Detrick manifests itself in art 9.3 which is then broadly mirrored in art 10.2. They affirm the following rights:

9.3 States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

_...

27 Ibid, at 195-196.

10.2 A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. ...

[53] This reflects the underlying value expressed at art 9.1, and underscores its relevance to both contexts.

Relevance of art 9

[54] The Crown’s objection appears to be that art 9.1, unlike art 3, imposes a positive obligation on the State to act in the best interests of the child and Parliament would not have intended to bind immigration officers to this higher threshold. But that misapprehends the relevance and effect of art 9.1 and s 177(3). First, the State parties acknowledged by art 9.1 that it is the fundamental duty of the State to ensure that a child is not separated from a parent unless it is in his or her best interests. The State parties then agreed, in the immigration context, to give vent to that duty in the form of specific rights expressed at art 9.4 and art 10 dealing with (among other things) interstate movement of children. What I think Glazebrook and Baragwanath JJ and Baroness Hale were confirming is that art 9.1 does not have absolute binding effect on State parties in the immigration context, given the separate treatment afforded to some immigration decisions by art 10. But that does not make art 9.1, and the underlying value that it expresses, irrelevant to the immigration context. On the contrary, as I have said, art 9.1 is a driving influence for art 10.

[55] Secondly, Parliament has stated that the immigration officer must have regard to relevant obligations. That is the extent to which it has chosen to incorporate those obligations. This is vastly different from an obligation to give effect to them or even a presumption that the decision will be made consistently with them. Rather, the duty of the officer is to take into account those obligations in the overall mix of considerations. The critical requirement though is to be properly cognisant of relevant international obligations so that the decision is made, demonstrably, within the correct frame.

[56] In any event, in the present case it is not necessary to declare that art 9 is relevant in all immigration cases. Rather, where the domestic relationship between

the child and the proposed deportee is a relevant factor to a decision about whether to cancel a deportation order, the immigration officer must be mindful that art 9.1 provides a strong direction that a child and parent must not be separated unless that would be in the best interests of the child. Plainly, Mr Parr gave careful consideration to the history of domestic violence. By then failing to have specific regard to art 9.1 and its general thrust, Mr Parr fell into error.

Other matters

[57] It is not necessary for me to dwell on the other matters raised by Mr James. He did not pursue the claim based on prejudicial material about Mr Liu’s history of violence. Had he done so, I would have rejected it. The issue of domestic violence was part of the factual matrix. Mr Parr is empowered to consider what he thinks is relevant without the need for further inquiry. That he raised these matters with Mr Liu and M removes any concerns about procedural fairness. The claim of bias was equally weak. Mr Parr’s comments about M’s marital status were inappropriate, but they do not cogently demonstrate bias of a kind that might reveal procedural or substantive unfairness. They could also be said to reveal empathy for her rather than antipathy for Mr Liu. And given the empathy he has demonstrated in his previous decisions for their situation, I am not prepared to make an adverse finding of bias on the limited material before me. Finally, Mr Parr rejects the claim that he did not have regard to the victim’s views. I have no reason to doubt him on this, and leave was not sought to cross examine him.

Discretion

[58] While public law remedies are discretionary, there must be strong reasons to decline to grant relief where a public decision maker has been shown to have erred in the exercise of his or her powers.28 It has been said that a more nuanced approach may be necessary in the generality of cases.29 There are also a number of decisions

_{in the immigration context where it can be seen that the superior Courts have}

28. See Air Nelson Limited v Minister of Transport [2008] NZCA 26; [2008] NZAR 139 at [59]- [61].

29 Refer Rees v Firth [2011] NZCA 668. [2012] 1 NZLR 408 at 422, citing Gerard McCoy “Public

Law Potpourri” [2009] NZLJ 352 at 354.

afforded immigration officials the benefit of the doubt, particularly in circumstances where their decision was demonstrably the right one, notwithstanding some technical error of law. An illustration is in the Supreme Court in Huang v Minister of Immigration30 where the Court observed:

But the Court has a discretion in the matter. Relief should be declined because the officer must inevitably have come to the same decision, that is, to allow removal to proceed, after applying the correct legal principles. The fact that Jarvis was now two and a half years older than when the RRA considered the matter could not reasonably have been regarded as a materially new dimension.

[59] Having said that, the same Court in Ye set aside equivalent erroneous decisions.

[60] For my part, the failure to comply with a requirement to have regard to an international obligation cannot be treated lightly. Plainly Mr Parr had regard to a raft of other articles in UNCROC and articles in other conventions, which cumulatively stress the importance of A’s interests. But he failed to have regard to, and knowingly so, art 9.1 which affirms the solemn duty of the State to ensure that a parent and child should not be separated unless it is in the best interests of the child to do so. The added emphasis in art 9 (and art 10) on securing parental involvement in a child’s upbringing calls for still greater caution before making a decision that separates a parent from the child. Failure to have regard for art 9 therefore is not offset by other general articles dealing with, for example, recognition of the principle that parents have common responsibilities or that the best interests of the child shall be “a primary” consideration. Having said that, the breadth of Mr Parr’s consideration of international obligations is otherwise laudable and a strong factor militating against relief.

[61] Be that as it may, Parliament has been intentionally prescriptive in requiring an immigration officer to “have regard to” any relevant international obligations. That must be so because each of them has value where relevant in furtherance of the statutory purpose. The task therefore imposed on this Court is to ensure that

_{Parliament’s intention is strictly upheld.}

30 Refer Huang v Minister of Immigration [2010] 1 NZLR 135 (SC) at 137.

[62] I am not prepared to exercise what limited discretion I have to countenance the failure by Mr Parr to have regard to art 9 (or art 10). That would not accord with the Parliamentary intent expressed by s 177(3).

Result

[63] Mr Parr erred by failing to have regard to art 9.1 (and art 10). His decision to decline to cancel the deportation order is set aside. I understand that Mr Parr has now retired. It will be for the respondent to appoint a new immigration officer for the purpose of a fresh evaluation under s 177(3). The new officer must consider whether to cancel the deportation order under s 177(3) and in so doing must have regard to art 9.1 and art 10. The weight, however, the officer attaches to those articles, and other relevant international obligations, will be a matter for him or her.

Costs

[64] Mr Liu is entitled to costs. If the parties cannot agree on quantum, leave is granted to file submissions.

Solicitors:

A G James, Christchurch, for Applicant

Crown Law, Wellington, for Respondent