Liu v Chief Executive of Department of Labour [2013] NZHC 3476 (19 December 2013)

Last Updated: 4 March 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2012-409-000896 [2013] NZHC 3476

BETWEEN ALAVINE FELIUAI LIU Plaintiff

AND CHIEF EXECUTIVE OF DEPARTMENT OF LABOUR

Respondent

Hearing: 16 December 2013 (By telephone) Counsel: A G James for Applicant

U R Jagose and L M Inverarity for Respondent

Judgment: 19 December 2013

_{JUDGMENT OF WHATA J}

[1] The Department has filed an application for stay of execution of that part of my judgment of 24 October 2012 requiring the decision whether to cancel the applicant’s deportation order to be made again. More specifically, they seek a stay of execution of the following order:¹

[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.

[2] More than a year has elapsed since the delivery of my judgment and it appears no steps have been taken to give effect to it. An appeal, however, was filed

¹ _{Lin v Chief Executive of Department of Labour [2012] NZHC 2753.}

LIU v CHIEF EXECUTIVE OF DEPARTMENT OF LABOUR [2013] NZHC 3476 [19 December 2013]

against the decision within the requisite timeframe and it was not until 4 November

2013 that the Court set the appeal down for hearing on 5 February 2014.

[3] The reasons said to support the application for stay are:

7.1 The matter is under appeal to the Court of appeal and will be heard on 4 February 2014.

7.2 The appeal is brought on the genuine ground that the High Court erred in finding that articles 9.1 and 10 of UNCROC are mandatory relevant considerations in when exercising the discretion to cancel a deportation order under s 177 of the Act.

7.3 The Respondent is acting bona fides in prosecuting the appeal and is pursuing the appeal with all diligence.

7.4 The issues for determination on appeal are important and relevant both to the immediate case and the development of the law. Two conflicting lines of authority have developed regarding the relevance of article 9.1 in the context of deportation. This creates difficulties for immigration officers making s 177(3) decisions and may create uncertainty for potential deportees as a consequence. It is therefore in the public interest that this matter be clarified by the Court of Appeal.

7.5 The prospects of the appeal being successful are high. The respondent’s position is consistent with the relevant Supreme Court authority: Ye v Minister of Immigration [20909] NZSC

76, [2010] 1 NZLR 104.

7.6 In the event that a stay is not granted a successful appeal will be rendered nugatory:

7.6.1 An order by the Court of Appeal setting aside the High Court judgment will be of no effect if an immigration officer has already made a decision under s 177(3) taking into account articles 9.1 and 10 and the deportation order has been cancelled. Even if that decision has the same result as the one set aside, and the deportation order is not cancelled, that decision will have been made taking into account irrelevant considerations.

7.6.2 An order setting aside the High Court judgment will certainly be of no effect if the decision is taken again and the deportation order is cancelled.

7.7 The application for judicial review, Mr Liu, consents to the order being made, as set out in the joint memorandum of counsel accompanying this application.

[4] An affidavit has also been produced by Susannah Marie Nye-Picknell, a Technical Adviser for the Compliance Operations Division of Immigration New Zealand. She identifies the following practical difficulties with the decision:

5.1 The High Court decision will apply across a range of decisions taken by Immigration Officers, and is not confined to this case.

5.2 Immigration officers must consider exercising the power to cancel a deportation order in s 177, Immigration Act 2009 where an individual (who is subject to a deportation order) provides information to the officer concerning his or her personal circumstances and the information is relevant to New Zealand’s international obligations.

5.3 In making that decision, the immigration officer is obliged to record a description of the international obligations (if any) to which he or she has had regard.

5.4 Depending on the individual’s circumstances, immigration officers currently take into account a number of international obligations from UNCROC. One of those (article 3, UNCROC) requires that the interests of a child (of the person being deported) are a primary consideration. The High Court decision effectively puts two further international obligations from UNCROC into the decision making as potentially relevant factors. One of those (article 9.1) requires consideration of the child’s interests as the paramount factor, a higher standard than article 3.1.

5.5 INZ is concerned that decision making on this basis will become confused and risks immigration officers giving lip service to one or other of those obligations.

5.6 If changes are made to practice and advice to immigration officers now, based on this the High Court judgment, and the appeal is successful, we risk future decisions being either taken unlawfully or confused as to the relevant international obligations that may be relevant.

5.7 Of course, once the matter is finally determined on appeal, the Ministry may have to make changes to policy/immigration instructions, practice and advice to immigration officers so as to ensure compliance with the law is determined by the Courts.

[5] She also gives evidence that there has been no communication with Mr Liu since the High Court decision.

Assessment

[6] As Ms Jagose highlighted to me, the Department is not seeking a stay of my findings as to legality or the setting aside of the previous decision. Rather, what is being sought is a stay of execution of my direction that the matter be reconsidered in advance of the appeal. As there is no opposition to that course, and it makes sense to grant it, I stay that part of my decision.

[7] For clarity, however, lest there be any doubt about it, my finding on legality of the decision would not in any event be amenable to stay.²

[8] Furthermore, the Department should be aware that the nub of my decision concerns the taking into account of domestic relationship matters and it is in that context that my decision is directly on point, and continues to be binding until overturned or disproved by appellate authority.

[9] Accordingly, I grant the stay of execution in relation to my direction that the matter be reconsidered pending the determination of the appeal.

Solicitors:

Davidson & Associates, Christchurch

Crown Law, Wellington

² Refer Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC

1909 and cases cited there.