Guo v Immigration and Protection Tribunal [2014] NZHC 804 (16 April 2014)

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BETWEEN	JIANOUNG GUO First Applicant MEIHUA HONG Second Applicant JIAXI GUO Third Applicant JIAMING GUO Fourth Applicant
AND	IMMIGRATION AND P ROTECTION TRIBUNAL First Respondent MINISTER OF IMMIGRATION Second Respondent

Hearing:	19 March 2014
Appearances:	R M Dillon for Applicants C Griffin for Respondents
_Judgment:	_{16 April 2014}

[1] There are applications before the Court brought by the applicants Jianoung Guo (Mr Guo), his wife Meihua Hong (Mrs Hong), and two of their children Jiaxi Guo (Jiaxi), and Jiaming Guo (Jiaming), The first is an application for leave to appeal a July 2013 decision of the Immigration and Protection Tribunal (IPT) dismissing appeals brought by the applicants against liability for deportation. The

_{second is an application in which they also seek leave to judicially
review that}

decision. The third is an application for leave to adduce further evidence on the appeal.

[2] The second respondent the Minister of Immigration (the Minister) opposes all three applications.

[3] The first respondent the IPT has advised that it simply abides the decision of the Court.

[4] Mr Guo and Mrs Hong who were both born in China have three children: (a) Their eldest daughter Jiaxi born in China in 1990;

[5] In March 2002, Mr Guo, Mrs Hong and Jiaxi arrived in New Zealand for the first time.¹Given that as I have noted above the couple’s second child, Ellen, was born in New Zealand in February 2004, she has New Zealand citizenship as of right, because she was born in New Zealand prior to 1 January 2006.²Ellen is not a party to this application therefore. Jiaming however, the couple’s only son, was born in New Zealand on 25 May 2006 and therefore does not have New Zealand citizenship.³

_{Business (Entrepreneur) category. He made this application himself as
a primary}

¹_{Neither Mr Guo, Mrs Hong nor Jiaxi is a New Zealand citizen
as they were all born in China.}

²This was prior to the amendments to the Citizenship Act 1977, s 6(1)(a) which took effect from

³Section 5 of the Citizenship Amendment Act 2005 amended s 6(1)(a) and (b) of the principal Act with the effect that unlike the position of children born in New Zealand before 1 January 2006 children born in New Zealand after 1 January 2006 who did not have a New Zealand citizen parent as is the case with Jiaming were not entitled to New Zealand citizenship by birth.

applicant and on behalf of his wife Mrs Hong, their eldest daughter Jiaxi and newborn son, Jiaming as secondary applicants.

[7] In that application, Mr Guo completed the “Character Requirements” section of the form, including the question: “have you or any of your family members included in your application ever been involved in the illicit drug trade?” Mr Guo ticked the box indicating that he had not.

[8] Mr Guo signed the declaration on the form, confirming that the information provided was true and complete, and that he understood that making any false statements, or providing false or misleading information could lead to the application being declined or the permit being later revoked, and that this could also amount to an offence leading to liability for prosecution.

[9] He also declared that he would inform the former New Zealand Immigration Service (NZIS) of any change of circumstances that might affect the decision to grant him and his family residency.

[10] The applications were approved by NZIS on 6 September 2006. Coincidentally it seems on the same day (6 September 2006), Mr Guo was arrested in New Zealand and charged with importation of a Class C controlled drug, and possession of that drug for supply. He had imported a 20 foot shipping container carrying large hollowed-out granite slabs. Mr Guo had been a stonemason working with granite in China. Concealed inside the slabs were compartments containing almost 596,000 ContacNT capsules, each containing 90 mg of pseudoephedrine and a large quantity of cigarettes. This was a significant importation which would be valued at $1.5 - $3 million in its raw state, but with a street value of up to $40 million once processed into methamphetamine.

[11] The Police and the New Zealand Customs Service had intercepted this container prior to its delivery to Mr Guo’s house, which Mr Guo was unaware of. Mr Guo was apprehended by Police in the process of smashing open the granite blocks with a heavy mallet and removing the ContacNT capsules into a separate rubbish sack.

[12] On those charges, Mr Guo was found guilty by a jury on 12 December 2008. In February 2009 he was sentenced to five years and three months imprisonment for each offence, these sentences to be served concurrently. He unsuccessfully appealed against conviction to the Court of Appeal.

[13] As a result of his offending, on 25 June 2009 Mr Guo was served with a deportation order under s 91(1)(a) of the Immigration Act 1987. In July 2009, Mr Guo appealed against the deportation order. The IPT dismissed his appeal on

27 April 2011. In May 2011, he applied for judicial review of the IPT’s decision. By consent orders, the High Court remitted the decision to a differently constituted IPT for rehearing.

[14] In December 2011, Mrs Hong, Jiaxi and Jiaming were issued with deportation liability notices under s 158(1)(b)(ii) Immigration Act 2009 on grounds that their residence visas were granted on the basis of a visa (Mr Guo’s) procured through false or misleading representation, or concealment of relevant information, that is, Mr Guo’s involvement in the illicit drug trade. Those family members also appealed then to the IPT against this deportation liability.

[15] In December 2012, the IPT conducted a rehearing of Mr Guo’s appeal and also heard the appeals of the other family members. On 4 July 2013, prior to release of the IPT decision, Mrs Hong left New Zealand and travelled to China for a family funeral. The consequence of this was that her appeal to the IPT was deemed withdrawn under s 239(1)(a) Immigration Act 2009. She was then served with a New Zealand deportation order at Shanghai Airport on 15 July 2013. By operation of s 179(1) Immigration Act 2009 Mrs Hong, a person to whom s 158 applies as someone who had been deported from New Zealand, was therefore subject to a permanent prohibition on entry into New Zealand. Mrs Hong is now an “excluded person” under s 15(1)(c) or (d) Immigration Act 2009.

[16] The IPT issued its decision on 10 July 2013, dismissing all appeals unaware that Mrs Hong was in China. On 16 July 2013, the IPT learned that Mrs Hong had left New Zealand. It therefore recalled its decision on 18 July 2013, removing

Mrs Hong as an appellant and on 25 July 2013 it re-issued the decision on which leave to appeal and judicial review is sought here.

[17] Mrs Hong is therefore no longer an appellant here. When I refer hereafter to

[18] The present appeal and judicial review application are brought under ss 245 and 249 Immigration Act 2009. Section 245 provides that a party may appeal to the High Court on a point of law with leave while s 249 addresses aspects of similar judicial review applications. It is convenient to set out below these provisions in full.

(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.

(a) not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or

(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.

(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.

(4) On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may then—

(b) remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or

(5) Subject to subsection (2), every appeal under this section must be dealt with in accordance with the rules of the court, with any modifications necessary to reflect the provisions of this Act, including any ancillary general practices and procedures developed under section 260.

(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.

(1A) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.

(1B) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (1A) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.

(1C) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—

(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and

(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

(2) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.

[19] In its December 2012 hearing, the IPT re-heard Mr Guo’s humanitarian appeal under s 105 Immigration Act 1987, took into account the seriousness of his offending that prompted deportation and determined that it was not unduly harsh nor unjust for him to be deported.

[20] Section 158 Immigration Act 2009 is the relevant deportation section in this case relating to Mrs Hong and the two non-citizen children. Essentially they are liable for deportation under s 158(1)(b)(ii) as their visa or entry permission it is said was granted on the basis of a visa procured through “fraud, forgery, false or misleading representation, or concealment of relevant information”.

[21] Section 179 Immigration Act 2009 sets out the relevant periods of prohibition on re-entry to New Zealand based on the various provisions in the legislation that someone has been deported under. A person deported under s 158 faces permanent prohibition from New Zealand.

[22] Section 207 Immigration Act 2009, which is of relevance here, sets out the grounds for determining a humanitarian appeal:

(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—

(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

(2) In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim made in accordance with section 208.

[23] This sets out a two stage test for determining a humanitarian appeal. I will discuss this particular test further below.

[24] Because the deportation proceedings were brought at different times, they arise under different Acts.

[25] As I have noted above, Mr Guo appealed under s 105 Immigration Act 1987 against his liability for deportation. Deportation was ordered on the ground that he was convicted of very serious offences here of importing and possession of Class C drugs. The offences occurred while Mr Guo was in New Zealand on a temporary permit.

[26] The other three family members had been served with deportation liability notices under s 158(1)(b) Immigration Act 2009 as noted on the basis they had been secondary applicants in Mr Guo’s false and misleading residence visa applications and obtained residence as his family members. Disclosure of his involvement in the importation of drugs or on the basis of a material change in circumstances was required by s 34G of the Immigration Act 1987.

[27] The IPT decision sets out the factual background of the family in significant detail. The Tribunal dealt concisely with Mr Guo. It noted the seriousness of his offending.⁴It found that while deportation was harsh taking into account his family and the impact of this on them, it was neither unduly harsh nor unjust for Mr Guo to be deported.⁵

[28] In discussing the applications of Mrs Hong, Jiaxi and Jiaming, the IPT noted these included an appeal on the facts. The IPT said the question to be addressed was whether it was satisfied, on the balance of probabilities, that the resident visas of Mrs Hong, Jiaxi and Jiaming were not procured by Mr Guo’s fraud, forgery, false or misleading representation, or concealment by him of relevant information. The IPT

[29] There was also an appeal on humanitarian grounds in relation to Mrs Hong, Jiaxi and Jiaming. The IPT stated that Ms Guo was “wholly innocent of any

_{Fujian, China, children born outside the province, including those born
overseas,}

⁴_{Guo v Minister of Immigration [2013] NZIPT 600006-7,
10 July 2013 at [78]-[79].}

were not subject to the family planning rules (which are very strict in some parts of China).⁸The IPT found in regard to Mrs Hong, Jiaxi and Jiaming, that exceptional circumstances of a humanitarian nature existed. This was because none of them were a party to the deceit inherent in Mr Guo’s non-disclosure of information.⁹

There was reference to the implications that would arise if they were deported and if

[30] The IPT then considered however whether it would be unjust or unduly harsh for the appellants to be deported. While they were innocent parties, it was noted they remained the holders of immigration status obtained through Mr Guo’s wrongful actions. The preservation of the integrity of the New Zealand immigration system was confirmed as a significant factor in this assessment. The IPT then

[31] In relation to Jiaxi, it was noted that she would prefer to remain in New Zealand, having lived here for more than half of her life. Reference was made to her university qualifications but it was recorded that she would be able to make use of those skills in China. The IPT accepted that while the impact of the deportation on her would be harsh, it would not be unduly harsh.¹⁰

[32] The IPT then considered Jiaming, who was born in New Zealand and had spent his entire life here. There was discussion of his education and healthcare. The IPT noted again that Jiaming was wholly innocent and found that the effects of deportation would be harsh for him for a short period, but that again they would not

_{[33] The IPT then discussed the citizen child Ellen and again noted
that she was}

could not obtain Chinese citizenship without relinquishing her New Zealand citizenship. It seemed that if she went to China, she would have to apply for a series

_{of visas to remain in China if she wished to keep her New Zealand
citizenship. The}

IPT found however that, in the circumstances here, deportation of her siblings and the likely need for her to leave too, was not disproportionate.¹³

[34] The original assessment of Mrs Hong was left to last, as her position was substantially affected by the outcomes in respect of the children. The IPT was satisfied, based on its findings in relation to the two children Jiaxi and Jiaming, that Mrs Hong would have wished to return to China hypothetically, or indeed to stay there now, if those two children were deported. Probably also Ellen would travel to China with them as well which would reunite the family.

[35] The IPT found that it was not unjust or unduly harsh for the two children to be deported and for their mother to remain in China. Therefore, the Tribunal was not required to consider the second limb of the test, relating to the public interest.

[36] And in relation to Mr Guo, it confirmed the deportation order made on the basis of his serious offending.

[37] The IPT then went on to order the removal of any period of prohibition on entry that would otherwise apply under s 179 Immigration Act 2009 for Jiaxi meaning, if deported from New Zealand, she would have the ability without delay to apply to return. As Jiaming was under 18 years old, he did not face permanent prohibition if deported. The permanent prohibition on re-entry for Mrs Hong however, was not removed.

[39] Turning first to the application by the applicants before me for leave to adduce further evidence, this has two components. The first relates to a recent affidavit providing evidence of the relationship and marriage on 22 January 2014 of Jiaxi to a Mr Matthew Lee, a New Zealand citizen. It is said that relationship had barely commenced at the date of the IPT hearing, and it was not regarded as a stable relationship until about May 2013. The marriage itself only occurred early in 2014.

[40] The second component of this application for leave to adduce further evidence relates to information which is now available via Mrs Hong in China. It is claimed this evidence was not available at the date of the IPT hearing as Mrs Hong was not in China then. This further evidence involves an affidavit with a translated report from Mrs Hong relating to recent difficulties she has experienced in China concerning the family and their future should they be deported. On this aspect, Mr Dillon counsel for the applicants contends that the IPT in its decision relied on a report of the Australia Refugee Review Tribunal completed in 2006, some eight years ago, of the situation in Fujian Province, whereas the fresh evidence he says paints a very different picture of the circumstances prevailing there.

[41] Mr Dillon went on to contend that the elements for the admission of all this further evidence outlined in r 20.16 High Court Rules are made out in this case. He argued this is effectively updating evidence concerning matters which have occurred since the IPT hearing, and this evidence should be adduced.

[42] Ms Griffin for the Minister opposed this application for leave on the basis that the affidavits in question comprise post-hearing evidence which was not before the IPT and under basic principles of appeal and review it should not be admissible – Wilfred v Chief Executive of the Department of Labour¹⁴and T v Immigration & Protection Tribunal.¹⁵

[43] The Minister’s position here is that if this further evidence is allowed, it would cut across the scheme of the Immigration Act 2009 dealing with how evidence on appeal is received by the IPT for the following reasons:

(a) It is acknowledged that the IPT can receive a wide range of evidence, but the onus is always on the appellants to put forward all information, evidence and submissions they wish the IPT to consider before it is to make its decision on their appeals – ss 226 and 229

¹⁴_{Wilfred v Chief Executive of the Department of Labour
[2006] NZHC 1098; [2007] NZAR 237.}

(b) Fresh evidence arising following a decision of the IPT is not grounds for a further appeal. On this, Jiaxi’s changed circumstances brought about by her marriage it is said are matters she may rely upon if she wishes to apply for a work visa or even residence offshore on the basis of her new partnership, subject to meeting standard immigration requirements. It seems also to be possible for Jiaxi to appeal to the Minister to suspend her liability for deportation under s 172

Immigration Act 2009 based on her marriage partnership and any refusal here might trigger a right to seek judicial review of such a decision.

[44] In addition, Ms Griffin for the Minister noted that Mrs Hong’s translated statement annexed to the affidavit of Jiaxi contains opinion evidence which is said to originate from an unidentified police officer and is not in any way verified. She contends this must be of little probative value in the present proceeding, as there is no way it could be realistically tested by the Minister.

[45] Issues also arise it is claimed concerning the reliability of the translation of

[46] Finally, the information as to the position of Fujian Province attributed to the police officer in question it is claimed improperly seeks to cast doubt on the factual findings made by the IPT open to it on the evidence at its appeal hearing. This argument related to the 2006 report of the Australia Refugee Review Tribunal and the IPT’s qualification of the expert evidence given to it by Dr Brady. In the past, this Court has said that such actions may well be inappropriate as they seek to attack the substantive reasonableness of the IPT decision when a merits appeal is not available – Wilfred v Chief Executive of the Department of Labour and Northcote

_{Mainstreet Incorporated and Westfield NZ Limited v North Shore City
Council and}

¹⁷Northcote Mainstreet Incorporated and Westfield NZ Limited v North Shore City Council and

Refugee Review Tribunal report was agreed to be submitted by the parties to the IPT appeal and at no time before the Tribunal was any submission made on behalf of the applicants that this report was outdated and of little worth.

[47] In my view there is substance in these submissions advanced by Ms Griffin for the Minister in her opposition to the application for leave to bring this fresh evidence. This appeal does not provide an opportunity for the appellants to bolster their case with new evidence. Although the position concerning the marriage of Jiaxi to Mr Matthew Lee is indeed an updating event since the IPT decision, there is an issue as to whether this is material to the current appeal, given that these are matters which may form the basis for a fresh residence application or alternative appeal to the Minister. And, as noted at [18] above, the present appeal is brought under s 245 Immigration Act 2009 and seeks leave to appeal on a question of law.

[48] The application to adduce further evidence fails. But, in any event, even if this application had succeeded and the additional evidence taken into account, as I see the position it would have made no difference to the ultimate decision on the applications before the Court, as will appear later.

Act 2009, on this 11 points are outlined in the applicants’ amended application dated

6 December 2013. These specify that leave to appeal should be granted in relation to a number of questions of law which are set out as follows:

(i) Whether section 158 and/or 202 of the Immigration Act 2009 is/are in breach of Section 20L of the Human Rights Act 1993 by virtue of s 19 of the New Zealand Bill of Rights Act 1990 and s 21(1)(i) and (l) and s 21(2) of the Human Rights Act 1993.

(ii) Whether the Tribunal was required to give proper and sufficient consideration to the presumption of innocence both at common law and under s 25(c) of the New Zealand Bill of Rights Act 1990 in relation to all Appellants save the First Appellant.

(iii) Whether the Tribunal was required to give proper and sufficient consideration to the prohibition against double jeopardy contained in

(iv) Whether any injustice in relation to the affairs of the Appellants is sufficient to fulfil the criteria “unjust or unduly harsh” in s 207(1)(a) of the Immigration Act 2009.

(v) Whether the Tribunal gave proper, genuine and adequate consideration to the best interests of as well as the rights possessed by the First Appellant’s daughter, Ellen...by virtue of her New Zealand citizenship and by virtue of the fact that she is a person living lawfully in New Zealand.

(vi) Whether the Tribunal erred in assessing the interests of Ellen...against the assumption that her mother could not return to New Zealand instead of according to whether it would be in the best interests of Ellen that her family, including her mother, be allowed to live in New Zealand.

(vii) Whether the Tribunal gave proper, genuine and adequate consideration to the best interest of as well as the rights possessed by the Fourth Appellant, Jiaming...by virtue of the fact that he holds a New Zealand permanent resident visa and by virtue of the fact that he is a person living lawfully in New Zealand.

(viii) Whether the Tribunal gave proper and sufficient consideration to the evidence of Dr Anne-Marie Brady and whether the Tribunal was required to put to her the country information on which it intended to rely, pursuant to the requirements of section 92 of the Evidence Act 2006 and/or the principles of natural justice exemplified by that section of that Act.

(iv) Whether the Tribunal was required to explain why deportation of the entire family was not “unjust”.

(x) Whether the Tribunal gave proper and adequate reasons for finding that it would not be unjust or unduly harsh for the Third and Fourth Applicant to be deported having already determined that there were exceptional circumstances of a humanitarian nature in respect of them.

(xi) Whether both or either of the sections 245, 247 and/or 249 of the Immigration Act 2009 is/are an unlawful impediment to the right of judicial review, either at common law or pursuant to section 27 of the New Zealand Bill of Rights Act 1990.

[50] The amended application goes on to record the grounds on which leave is sought:

(b) The decisions of the Tribunal to confirm the deportation order of the First Appellant and deportation liability notices of the Second, Third and Fourth Appellant are erroneous in law.

(c) The questions of law involved in this appeal are ones which by virtue of the above reasons and/or by reason of their general or public importance ought to be submitted to the High Court for its decision.

3. This application is made in reliance on sections 19, 26(2) and 27 of the New Zealand Bill of Rights Act 1990, such International Instruments that the State of New Zealand is a signatory to bearing on the aforesaid rights, section 3(1) of the Imperial Laws Application Act 1988, s 20L and 21 of the Human Rights Act 1993, the inherent jurisdiction of this Court, the Immigration Act 2009 (ss 158, 202, 207, 245 and 247), section 92 of the Evidence Act 2006, the High Court Rules Part 20, Ye v Minister of Immigration [2009] NZSC 76; [2010 1 NZLR 104; Minister of Immigration v Al Hosan [2008] NZCA 462, Daganayasi v Minister of Immigration [1980] NZLR 130 (CA), Pal and Anor v Minister of Immigration [2013] NZHL

2070, Tavita v Minister of Immigration [1994] 2 NZLR 257, A (FC) and Ors v Secretary of State for the Home Department [2004] UKHL 56 and the affidavit of Mr Jianyoung Guo sworn 12 August 2013 filed herein.

[51] Before turning to consider these specific matters it is important again to note as set out at para [18] above that s 245(3) Immigration Act 2009 confirms that IPT decisions can only be appealed to this Court on questions of law with leave. It is useful here to repeat s 245(3) which provides:

[52] It seems clear from the authorities that in terms of the scheme of the Immigration Act 2009, not every question of law is one which will be granted leave to appeal. The introduction by Parliament of a leave requirement indicates a deliberate intention on its part to limit appeals from immigration decisions – Nabou v Minister of Immigration.¹⁸

[53] And the proposed question of law must be capable of bona fide and serious argument – Minister of Immigration v Jooste.¹⁹

¹⁸_{Nabou v Minister of Immigration [2012] NZHC 3365; [2013] NZAR 155 at
[6].}

[54] In Taafi v Minister of Immigration²⁰Kós J outlined the “triple hurdle” facing an applicant attempting to establish error of law in the immigration context as

(a) First the applicant must show a seriously arguable case that factual findings by the IPT are actually incorrect. An Appeal Court will not interfere where there is an available evidential basis for the Court’s

(b) Secondly, the applicant must show that the factual errors made by the IPT are so grave as to constitute an error of law, meaning making a finding based on no evidence, evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence.

(c) Thirdly, the applicant must establish that the question of law is one of general or public importance, which is a “hard ask” in the case of factual errors, no matter how profound.

[55] In addition, it is clear that value judgments made by the IPT in balancing and weighing the competing factors arising in any given case will seldom amount to an error of law – De Borja v Removal Review Authority.²¹The weighting afforded to relevant considerations is clearly a matter for the decision-maker alone – Minister of Immigration v Zhang.²²

[56] Under both s 245(3) Immigration Act 2009 relating to applications for leave to appeal and under s 249 Immigration Act 2009 relating to judicial review applications, the importance of the issues raised is central to the test of whether the

[57] This formula “of general or public importance” is a common one in provisions for granting leave for a second or further appeal – for example see s 13

[58] Effectively, a proposed appeal or review will not be of general or public importance if the issues are fact specific and raise matters of concern to the parties only or where the law is well settled – LMN v Immigration New Zealand²³and

The grounds for granting leave are narrow. In short, the applicant must show that his application raises a question in law of general or public importance, or which for any other reason should be submitted to this Court for its decision. Thus, factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination, therefore, is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing “any other reason” for his appeal to be submitted to this Court for determination.

[60] I have noted already at para [52] above that the introduction of a leave provision in respect of appeals from decisions of the IPT indicated Parliament’s intent to limit appeals from immigration decisions. Following the amendment to s 249 Immigration Act 2009 this point must also be true with respect to judicial review applications.

[61] So far as the “any other reason” ground for granting leave is concerned, in

...it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.

²⁴_{Lumley General Insurance (NZ) Limited v Oceanic Foods
Limited [1997] 11 PRNZ 223.}

[62] I turn now to consider the applicants’ 11 proposed questions of law in their appeal under s 245 as outlined at para [49] above. These seem to fall into two broad categories:

(a) Claims that certain provisions of the Immigration Act 2009 and aspects of the IPT decision are in breach of provisions of the New Zealand Bill of Rights Act 1990 (NZBORA) and the Human Rights Act 1993 (HRA); and

[63] Here the applicants contend that relevant for them and the circumstances prevailing in this case are the following prohibited grounds of discrimination referred to in s 21 HRA:

(i) age, which means...[relevantly]...any age commencing with the age of 16 years

[64] On this Mr Dillon for the applicants suggested that discrimination on at least one of the prohibited grounds noted above has occurred here and the decision of the IPT is “tarred” with its conclusions regarding the application made by the father Mr Guo.

[65] This would seem here to be the only proposed question of law relating to the appeals on fact. The applicants appear to submit that s 158(1)(b)(ii) HRA is discriminatory on the basis of family status contrary to s 19 NZBORA and s 21(1)(l)(iv) HRA. This argument is based on the fact that Jiaxi and Jiaming are liable for deportation on the basis of their father’s conduct, being conduct of which the IPT found they are wholly innocent. In my view this ground of appeal cannot be argued here and is quickly disposed of. The applicants have failed to identify how they are being treated differently from others in comparable circumstances on the basis of any of these prohibited grounds of discrimination noted being family status, ethnic or national origins or age. The essence of discrimination being the different treatment of people in comparable circumstances is not made out here.

[66] Jiaxi and Jiaming clearly obtained the benefit of their residence visas as secondary applicants solely on the basis of their family status as children of the primary applicant Mr Guo. As I see the position, it must follow that being liable for deportation on the same basis due to their father’s concealment of relevant information cannot amount to discrimination. When considering s 158(1)(b) Immigration Act 2009, it is clear that the express purpose of this provision is to confirm that those whose residence class visas are procured by fraud, misleading information, or concealment of relevant information become liable for deportation. The fact that a visa holder may be innocent of the fraud by which it is obtained is

irrelevant – Pal v Minister of Immigration,²⁶Ansell v Minister of Immigration²⁷and

[67] On this aspect, in similar fashion, the applicants submit that the IPT was required to consider the presumption of innocence under s 25(c) NZBORA in relation to Jiaxi and Jiaming particularly as it found these children to be innocent. Having done that, it is said the IPT determined that the consequences of their father Mr Guo’s actions must flow to them which was wrong and unjust. With respect, in

_{my view this argument is misconceived. Section 25(c) expressly applies
only to a}

person charged with a criminal offence and has no application in the context of immigration proceedings. But, even if this was not the case and it did so apply, in my view this point is of little moment. The IPT in its decision throughout clearly gave full weight to the fact of the children’s innocence of any complicity in their father’s offending. This clearly was a significant factor in the IPT’s finding in favour of the children that exceptional circumstances of a humanitarian nature existed. But innocence of itself is not a complete answer in a s 207 Immigration Act 2009 humanitarian appeal any more than it is in an appeal on the facts. It is not uncommon in immigration proceedings for the children of unlawful migrants or

_{resident criminal offenders to be caught in the crossfire of deportation
processes –}

[51] The implementation of the Minister’s decision, is, therefore, likely to produce harsh results for the person who is required to leave the country. The rationale for allowing this to occur is that, as in the present case, the Minister’s decision reflects the fact that the person should never have been allowed to reside in New Zealand in the first place.

[68] Mr Guo was convicted of serious drug related offending, was sentenced and served out his sentence. Mr Dillon in his submission suggested that, notwithstanding Mr Guo’s release from prison, a further penalty has been imposed by the issue of the deportation notice against him. Essentially therefore Mr Dillon suggests that Mr Guo is being punished with deportation as a result of the drug offences and this infringes the prohibition against double jeopardy under s 26(2) NZBORA.

[69] Leaving aside the fundamental argument advanced before me by Ms Griffin for the Minister that this proposed question of law was not raised by the applicants with the IPT, in my view on the substantive issue this proposition that deportation could be a breach of s 26(2) NZBORA cannot be seriously arguable here. If it was it would logically extend to every other deportation case, and that cannot be an

²⁹Prasad v Deportation Review Tribunal HC Auckland CIV-2007-404-8059, 19 February 2008.

[70] Deportation is clearly a statutory consequence that flows from conviction and sentence for certain categories of criminal offending – Pulu v Minister of Immigration.³⁰It is not a further criminal penalty and clearly involves “the separate interests of the State in the removal of migrants regarded as undesirable” – Pulu v Minister of Immigration.³¹

[71] There is therefore little question as I see the position that it falls outside the scope of s 26(2) NZBORA the function of which is to protect against double punishment in criminal proceedings arising from the same offending – Daniels v Thomson.³²

(iv) Whether any error of law in the application of s 207(1)(a) Immigration Act 2009 occurred

[72] Here the appellants submit the IPT erred in applying the test under s 207(1)

(b) The weight given to certain factors when considering whether it would be unjust or unduly harsh to deport under s 207(1)(a).

[73] On this, Mr Dillon for the appellants contended that double jeopardy, breaches of the NZBORA and HRA, and punishing the innocent for the actions of the guilty are all instances of injustice and any one of them would make out the ground of being “unjust”. Once that criteria is met, the first leg of s 105 Immigration Act 1987 for Mr Guo and s 207(1)(a) Immigration Act 2009 for the other appellants is said to be satisfied.

[74] Again in my view this contention is not seriously arguable. It is settled law that the s 207(1)(a) test as to whether a deportation is “unjust” or “unduly harsh” is

best regarded in a composite way and does not require discrete enquiries – Pal v

[75] The appellants’ argument that the IPT was required to consider “injustice” as a separate matter from whether it was “unduly harsh” is misconceived. The IPT is a specialist tribunal and its composite finding at [164] of its decision that deportation of the children was “not unjust or unduly harsh” I am satisfied discloses no error of law here.

[76] Next, the appellants contend that the IPT failed to give adequate reasons for finding that it was not unjust or unduly harsh to deport having already determined there were exceptional circumstances for Jiaxi and Jiaming. Again in my view this matter is similarly not seriously arguable. These are separate enquiries. A finding that there are exceptional circumstances does not invariably lead to a finding that it would also be unjust or unduly harsh to deport. This depends on how “compelling

and persuasive” the exceptional circumstances are – Ye v Minister of Immigration.³⁵

[77] Under this final element of the first limb of s 207(1) it is clear the IPT balanced the humanitarian factors it considered reached the level of exceptionality against the factors favouring deportation being the nature and consequences of the offending. It then determined whether deportation would be unjust or unduly harsh and referred to this test repeatedly in its reasoning. I am left in little doubt that the IPT comprehensively considered first, the issue of the children’s innocence in their father’s concealment of relevant information in their visa applications and secondly, whether the entire family’s appeal ought to be allowed in light of Ellen’s status as a minor New Zealand citizen and her right to remain in this country.

(v) Whether inadequate weight was given to Ellen’s citizenship when determining whether it was unjust or unduly harsh to deport Jiaxi and Jiaming

[78] On this the appellants submit the IPT did not give adequate weight to the best interests and citizenship status of Ellen in relation to the overall balancing required

_{under s 207(1)(a). Mr Dillon indicated that this aspect bears on the
tragic nature of}

³⁴_{Esau v Minister of Immigration HC Wellington
AP320/98, 5 October 2000 at [12].}

this proceeding for the entire Guo family given that through the timing in the birth of one of their children, Ellen, she is not an applicant as she is a New Zealand citizen by birth. He contended the consequences for Ellen are dire if the rest of the family are deported to China. The effect of the IPT decision Mr Dillon maintained was that effectively it made Ellen either an orphan in New Zealand or an outcast in China.

[79] As I see the decision of the IPT, the question of Ellen’s citizenship was a serious consideration and a major factor in its decision. The Tribunal carefully weighed factors favouring the children remaining in New Zealand and devoted specific attention to the interests of Ellen as a New Zealand citizen and her relationship with the rest of the family. To suggest that inadequate weight was given to this aspect in my view is wrong. In addition this would seem to be a similar attack on the merits of the IPT decision. Those merits and the weighing of evidence were matters for the IPT and do not provide a basis for the grant of leave here – see Nabou

[80] And, in any event, Ellen’s mother Mrs Hong is no longer an applicant here. She resides in China and given that she is to remain there, and the desirability of reuniting her children with her, the real likelihood that Ellen would join her mother and her siblings in China were factors for the IPT.

(vi) Whether the Tribunal erred in assessing Ellen’s interests against the assumption that her mother Mrs Hong could not return to New Zealand instead of according to whether it would be in the best interests of Ellen that her family, including her mother, be allowed to live in New Zealand

[81] On this aspect, Mr Dillon for the applicants referred to the Supreme Court decision in Ye and noted the following comment at para [63]:

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.

[82] Mr Dillon contended that in the present case the IPT demonstrably failed to apply the correct test when considering the interests of Ellen.

³⁶Mohamud v Minister of Immigration HC Wellington AP21/98, 5 October 1998 at [5].

[83] Again I reject this argument on the basis that it is similarly an attack on the merits of the IPT decision and the weighing of evidence there. But in any event as I have mentioned above, the fact of Ellen’s New Zealand citizenship was a major factor referred to on a number of occasions in the IPT decision. With her mother being required to remain in China and family reunification issues looming, I am satisfied the IPT acted properly in carefully weighing all factors relating to whether the children and their father should remain in New Zealand given Ellen’s citizenship. In my view the Tribunal did not err in this aspect.

[84] It is clear here that while Ellen is a New Zealand citizen Jiaming at all material times held a permanent residence visa based on an entirely compromised application because of the unlawful activity and later conviction of Mr Guo.

[85] On this aspect, Mr Dillon contended that when the circumstances of Ellen as a New Zealand citizen are added to those of Jiaming, and coupled too with the recent marriage of their sister Jiaxi, the approach and weighting of the factors considered by the IPT in relation to each application are altered from the position it adopted and thus errors of legal principle have occurred here.

[86] With respect I disagree. Under the Immigration Act 2009 it is clear the exceptional circumstances threshold for humanitarian appeals applies to all categories of deportation including residence as in this case under s 158(1)(b). The fact that Jiaming was a permanent resident albeit on a defective visa application does not provide him with any greater consideration here.

[87] But in any event, as I see the position, the IPT in this case was acutely aware of Jiaming’s close association with New Zealand in giving its decision and I am satisfied no further credit as a permanent resident would have had any bearing on the outcome of his appeal.

[88] Mr Dillon for the applicants submitted that the IPT did not give adequate consideration to the expert evidence of Dr Brady who testified as to a comparison of the situation for children in New Zealand with those in China. In considering the effects of deportation on the children here, the IPT referred to the eight year old official report of the Australian Refugee Review Tribunal noted at [40] above. Mr Dillon contended however that the evidence of Dr Brady as an expert witness painted a very different picture of current problems if Jiaming in particular as a New Zealand born child should be forced to leave this country. Issues were raised too in terms of s 92 Evidence Act 2006 where it was suggested that significant matters purporting to contradict Dr Brady’s evidence were not properly put to her in cross- examination.

[89] Having considered the detailed decision of the IPT here, I reject any contention that the IPT gave little or no regard to Dr Brady’s evidence in reaching its decision. This evidence was discussed at length with a full description of Dr Brady’s evidence provided at paras [56] – [62] of the IPT decision.

[90] In considering all the evidence here, I am satisfied it was open to the IPT to prefer the report which had been provided to the Tribunal on behalf of both parties, the integrity of which was not challenged in any real way, over the evidence of Dr Brady. In doing so the Tribunal noted that Dr Brady had not interviewed the Guo family members nor did she have specialist knowledge of Mr Guo and Mrs Hong’s home cities.

[91] Further, the issue as to whether the IPT must accept the uncontradicted evidence of an expert was addressed in Zanzoul v Removal Review Authority.³⁷

There the Court held the Removal Review Authority was not obliged to accept the report of a qualified expert but was entitled to weigh it against the totality of the evidence. In the present case the complaint by the appellants that inadequate weight was attributed to Dr Brady’s opinion but in essence that again discloses no error of

³⁷Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009.

[92] Further, the contention by the applicants that the IPT ought to have cross- examined Dr Brady in particular bearing in mind s 92(2) Evidence Act 2006 is without substance. That section imposes no obligation on the IPT to cross-examine witnesses and simply allows the Court at its discretion to admit contradictory evidence where no cross-examination on significant matters has taken place on the basis that the weight to be given to it may be affected by the fact that a possibly contradicting witness was not questioned about the evidence. This aspect in my view also does not assist the appellants here.

(ix) Whether the IPT was required to explain why deportation of the entire family was not “unjust”

[93] Here, the appellants contend that, to consider the whole picture, the IPT was required to view the entire circumstances and effects on the Guo family of deportation and to consider whether it was unjust to require deportation here. On this, Mr Dillon suggested that the decision in effect “exiles a New Zealand citizen, deports two innocent children and their father (thereby enforcing a penalty in the face of the double jeopardy prohibition).”

[94] For all the reasons I have outlined above, I consider that this contention is simply wrong.

[95] The Tribunal has provided a considered, fully-reasoned and detailed decision. There can be no question it has discharged its legal obligation to provide full reasons in support of its decision that deportation of the applicants here was not “unjust”.

(x) Whether the Tribunal gave proper and adequate reasons for finding it would not be unjust or unduly harsh for Jiaxi and Jiaming to be deported having already determined that there were exceptional circumstances of a humanitarian nature in respect of them

[96] Again, for all the reasons I have outlined above, this issue has already been answered. I am satisfied here the IPT did regard the interests of the children carefully divorced from the interests of their father Mr Guo. There are no discrimination or other arguments which might assist Jiaxi and Jiaming here. No leave to appeal based on this aspect is justified.

...when leave is requested to the High Court for an appeal against a decision of the IPT not only is the Court required to determine that there is a point of law that needs to be determined but also that there is some reason of public importance or other reason that warrants it being submitted to the Court for judicial attention. The requirement that there not only be a point of law but also that there is a reason of general public importance or other reason imposes a new restriction. The decisions which have considered the new appeal provisions have all agreed that these restrictions indicate that it was the intention of Parliament to limit appeals to Higher Courts in immigration cases (see for example X v Chief Executive of the Ministry of Business Innovation and Employment (HC) Whangarei CIV-2013-488-87, 28 March

2013). For this reason the Courts have been hesitant in granting leave to appeal.

The requirement to firstly establish a point of law and then to have it acknowledged that it is of some general or public importance poses prima facie a high threshold to cross. Consequently a number of applications for leave have been declined.

[98] Bearing these matters in mind, it is clear to me here that the appellants in their appeal to the IPT were not able to cross the high threshold required even insofar as the initial point in appeal was concerned.

[99] Accordingly for all these reasons the application for leave to appeal is dismissed.

[100] This brings into play the final question of law outlined at para [49] above as item (xi). This is to the following effect:

[101] A starting point here must be s 249(1C) Immigration Act 2009. An application for leave to review is governed by this section 249(1C) Immigration Act

2009. In determining whether to grant leave for judicial review this Court is to have regard to:

(a) Whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final decision of the Tribunal;

(b) If paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

[102] A first consideration therefore must be whether appeal on a point of law will adequately deal with the issues that are raised. If an appeal will achieve that, leave to review ought to be declined – Songmia v Minister of Immigration.³⁹

[103] It is clear now since the amendment to s 249 in 2013 that leave is now required for both appeals and applications for judicial review. And again, from s 249(1C)(b) it is apparent that it must be an issue of general or public importance or some other reason must exist for the issues in question to be submitted to the High Court for review.

[104] The overlap between judicial review and appeal has been recognised in a number of previous immigration cases with the issues being the same in many cases

_{and appeal being seen as the appropriate course – Al-Hosan v
Deportation Review}

errors alleged by the appellants in this case are of a type that could be simply dealt with on appeal if leave were to be granted and the question of any difference between appeal and review does not arise. Notwithstanding this, I will deal briefly with the specific grounds which the applicants have advanced in their present

⁴⁰Al-Hosan v Deportation Review Tribunal HC Auckland CIV-2006-404-3923, 3 May 2007 at

⁴¹Zafirov v Minister of Immigration [2009] NZHC 419; [2009] NZAR 457 at [79].

The IPT both erred in law and acted according to an improper purpose in its application of the s 207(1)(a) “unjust and unduly harsh” test

[105] These aspects involve a question of law which I have already dealt with above. Insofar as the appellants seek to challenge the weight that the IPT gave to the evidence of Dr Brady, I have also already dealt with this and confirm it is inappropriate for this Court to consider the weight the IPT has given to various factors on review anymore than it can do so on appeal on a point of law – Minister of

The IPT made mistakes of fact regarding the permanent prohibition of entry of

[106] Again as I see it these are primarily matters of law and can be dealt with on appeal. Mrs Hong is permanently prohibited from returning to New Zealand at this point by operation of law. The factual consequence of this is that, if the remainder of the family are to stay in New Zealand, there will be no unification and a family separation will be inevitable. An underlying factor in all of this is no doubt the desirability of reunifying the family and Mrs Hong with her children, which necessarily will take place in China. There is nothing in this ground advanced by the appellant.

[107] Again I reject this aspect advanced by the appellant. The allegation of inconsistencies with NZBORA restates the appellants’ proposed question of law that the application of s 158(1)(b) Immigration Act 2009 amounts to punishment of Jiaxi and Jiaming on the basis of their father’s offending. These are the same issues

Sections 245, 247 and 249 Immigration Act 2009 may constitute an unlawful impediment to the right to judicial review under s 27(2) NZBORA

[108] Here, the appellants contend that the requirements to seek leave to appeal and review the decision of the IPT under s 245 and s 249(1B) Immigration Act 2009 are unlawful impediments to the right to judicial review under s 27(2) NZBORA.

[109] I reject this contention. In my view it is unarguable for a range of reasons.

[110] First, there is no lawful basis to allow the appellants’ appeal or judicial review application to proceed without the necessity to obtain leave as the applicants have claimed. The terms contained in ss 245 and 249 Immigration Act 2009 express Parliament’s intention to limit appeals from immigration decisions and must be respected. But in addition, the appellants’ claim here in my view lacks merit.

[111] Secondly, s 27(2) NZBORA does not guarantee an additional right of civil appeal. Whilst there is a right to appeal from a criminal conviction there is no equivalent right of appeal in civil proceedings from first instance decisions. Accordingly s 245 in limiting appeals to this Court to points of law and requiring leave, does not engage s 27(2) NZBORA. And in any event more fundamentally, if it did, the appellants’ argument would extend across the statute book to all leave provisions affecting second appeals and this is quite untenable.

[112] Thirdly, the validity of s 249 vis-a-vis s 27(2) NZBORA has been expressly affirmed by this Court in previous decisions. These are Wang v Minister of

2009 simply delays judicial review until IPT proceedings are finally determined. It does not either oust judicial review nor place any unjustifiable limit on the operation

[114] This Court is the arbiter to determine if a proceeding in question is meritorious and should be granted leave. As I see it, there is nothing unjust in this process which in part is designed to ensure that there is a leave filter first, to protect public bodies from endless weak claims and secondly, to avoid this Court being clogged up and burdened with having to adjudicate on numerous claims with no realistic chance of success.

[115] Finally, the requirement to obtain leave in any event does not impair the essence of s 27(2) NZBORA, this Court always retaining a wide discretion to grant leave.

[116] Lastly, I am satisfied that on the facts of this case the issues raised by the appellants could be adequately dealt with in an appeal. It is difficult to see here what further utility judicial review would provide if it was to be found that the IPT erred in any material respect.

[118] The applications for leave to appeal and for leave to commence judicial review proceedings are dismissed.

[119] The second respondent has been successful here in opposing these leave applications and is entitled to costs which are awarded on a 2B basis together with disbursements (if any) as approved by the Registrar.

High Court of New Zealand Decisions

Guo v Immigration and Protection Tribunal [2014] NZHC 804 (16 April 2014)