Dong v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 1468; [2016] 3 NZLR 357 (30 June 2016)

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DEFANG DONG v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 1468 [30 June 2016]

[1] Mr Dong (the deportee) is in Christchurch prison awaiting deportation to

6 December 2011. His visa was valid until 24 April 2012 and after that he remained unlawfully.¹

[3] On 18 March 2016, Mr Dong was arrested and served with a deportation order. He did not have a valid travel document, and on 21 March 2016, a warrant of commitment was issued under s 316 of the Immigration Act 2009 (the Act).²

His deportation is imminent, but subject to this judgment and any further orders of the Court.

[4] In these proceedings, he challenges the decision of the Ministry not to cancel the deportation order after he advanced his personal circumstances in support of cancellation.

[5] There is no general right to apply for cancellation of a deportation order. However, if a person facing deportation provides information about their personal circumstances which is relevant to New Zealand’s international obligations, cancellation must be considered by an Immigration Officer.³

[6] Mr Dong has been in a de facto relationship with a New Zealand visa holder, Ms Xiao Xue Liu. They married on 4 March 2016.

[7] The personal circumstances which he advanced principally involve Ms Liu and what would happen to the relationship and each of them if he is deported. The

Ministry conducted a humanitarian interview with Mr Dong on 23 March 2016, but at the end of the process which founds this judicial review he was unsuccessful.

[8] Mr Dong alleged several deficiencies in the process adopted by the Ministry and on 11 April 2016 the Court was advised that a final decision would be issued by the Ministry following “reconsideration” of whether he should be deported. A tentative undertaking was given by Mr Lange, counsel for the Ministry, that if a decision was reached adverse to the plaintiff then a 72-hour notice period would apply. A Minute was issued to that effect.

[9] At an urgent teleconference on 13 April 2016 Mr Lange said he could not give that undertaking and by a Minute dated 14 April 2016, I made an order preserving the status quo so that Mr Dong would not be deported pending further order of the court. An urgent hearing for 22 April 2016 was scheduled, at which an application for interim relief was to be considered.

21 April 2016. The immigration officer, Mr Stephen Scott, recommended that deportation proceed. The way the decision was expressed and reference to the information considered by Mr Scott are central to this judgment.

[11] Mr Dong made a case for interim relief on the basis he could show he had a “respectable chance of success”.⁴As his argument would be the same at a substantive hearing, and the facts were not in dispute on what became the principal issue, counsel agreed it would be sensible to treat the urgent hearing on

22 April 2016 as the substantive proceeding. A resumed hearing on 17 May 2016 addressed a number of grounds of judicial review not fully developed on

[12] Counsel for the plaintiff, Mr Deliu, advanced several grounds, although some fell away or assumed less weight. The scale of the challenge is reflected as follows:

(i) The defendant acted unreasonably by failing to consider the plaintiff’s application for recusal of the initial managers in charge of the decision-making process.

(i) The apparent uncertainty as to the identity of the decision-maker at various points during the decision-making process meant that the defendant was acting ultra vires, and was unable to properly discharge its obligations under s 177 of the Act.

(i) The defendant failed to comply with ss 5 and 15 of the Official Information Act 1982 and s 17 of the Public Records Act 2005 in relation to a request by the plaintiff for information regarding who the actual decision-makers involved in the process were.

(ii) Breach of the defendant’s statutory obligations under s 177 of the Act which are said to demonstrate that the defendant has not genuinely considered the plaintiff’s humanitarian circumstances and their bearing on New Zealand’s international obligations.

(i) The defendant erred in law when it initially failed to undertake a partnership interview or receive submissions from the plaintiff’s legal representatives.

(ii) The defendant erred in law when it failed to interview or consider the evidence of a non-party, namely a friend of the plaintiff.

(i) The process adopted by the defendant demonstrates that it had already predetermined the decision to continue with deportation, and that it had not had genuine regard to the plaintiff's humanitarian circumstances.

(i) The defendant failed to take into account the evidence of a friend of the plaintiff, who had been interviewed by a manager involved in the plaintiff's application.

(i) The defendant acted in contravention of principles of natural justice, by simultaneously appearing to accept that the allegation that Mr Dong had obtained his initial visa fraudulently was unsubstantiated, but persisting with further inquiry into the issue without putting squarely to the plaintiff any prejudicial information.

[13] The focus of argument at the hearing on 22 April was whether the Ministry had failed to comply with the provisions of s 177 of the Act and in particular s 177(5)(b). At the resumed hearing on 17 May 2016 submissions were developed as to bias, predetermination, and recusal. The Ministry says that the procedure adopted met its obligations under the Act, and adduced evidence to show that some of the plaintiff’s allegations are wrong in fact.

(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 -

(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

(ab) privacy principle 6 (which relates to access to personal information and is set out in section 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application; 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—

be deported, after he had considered the humanitarian grounds advanced in relation

to Mr Dong’s personal circumstances. The decision is very brief but there is no

Do the person’s circumstances engage New Zealand’s international obligations,

I have had regard to the following international obligations: International Convention on Civil and Political Rights (“ICCPR”)

- family, natural and fundamental group unit of society, entitled to protection by society and state: Art 23

- widest possible protection and assistance should be given to family which is natural and fundamental group unit of society: Art 10

I am not obliged to provide reasons for my decision by virtue of section 177(4)(a) of the

[16] Mr Scott thus says he has carefully considered Mr Dong’s personal circumstances and the international obligations. The “further information taken into consideration...” is a reference to the source of information about those personal circumstances, including “The full case details held by Immigration New Zealand”.

[17] This must mean that the decision-maker had recourse to this material in the decision-making process as it would be idle to suggest that he was saying only that this material was available, but not necessarily considered. Under s 177(2) cancellation had to be considered if there were facts about Mr Dong’s personal circumstances relevant to New Zealand’s international obligations.

[18] Here, if any facts were identified relevant to New Zealand’s international

[19] A legal commentator has addressed the extent to which the exercise of discretion by immigration officers is reviewable,⁵following the judgment of the Supreme Court in Ye v Minister of Immigration,⁶and the High Court judgments in

⁸Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773,

[20] The so-called humanitarian interview was developed to guide the exercise of this discretion and came about as a response to the seminal judgment in Tavita v Minister of Immigration,⁹in which Cooke P emphasised that New Zealand should acknowledge and meet its obligations under ratified international instruments. In Ye the Supreme Court recognised that the purpose of the humanitarian interview is to consider the personal circumstances of the person facing removal, in relation to closely-related persons, including, but not exclusively, partners and children.

[21] The test which underscores the humanitarian interview is that of ‘exceptional circumstances’.¹⁰This applied to humanitarian appeals against removal under the former legislation and to all humanitarian appeals against deportation.¹¹This test applies generally to humanitarian appeals under the 2009 Act, although as discussed below is not applicable to the s 177 process.¹²

[22] Following Ye, Parliament made several amendments to s 58 of the Immigration Act 1987, reflected in ss 177(2) to (5) of the 2009 Act. The amendments are shown in the Schedule to this judgment.

[23] The Ministry through counsel Mr Lange submits that these amendments were enacted as a direct response to the Supreme Court judgment in Ye, and cites Chief Executive of the Ministry of Business, Innovation and Employment v Liu, where the Court of Appeal said:¹³

Section 177 is the legislature's response to the Supreme Court decision in Ye v Minister of Immigration. In that case it was held that immigration officers must apply the “exceptional circumstances of a humanitarian nature” test in what is now s 207 of the 2009 Act when deciding whether to cancel removal orders. The legislature has specified that immigration officers are now under no such obligation.

[24] The point was recognised by the Court of Appeal in Singh v Chief Executive of Ministry of Business, Innovation and Employment.¹⁴The Court succinctly identified the decision-maker’s obligations when taking into account relevant international obligations, as follows:¹⁵

... to the extent the IO does have regard to international obligations, the IO is obliged to record a description of them and of the (related) facts about the deportee's personal circumstances: s 177(5).

[25] The Court in Singh referred to statements made in light of the statutory amendments in Liu that:¹⁶

...under s 177 the immigration officer is not required to apply any particular test; it must follow that he or she need not attach particular weight to any given international obligation.

[26] Liu, however, was concerned with the test which the officer employs, not the

record of the facts which the officer is obliged to make. It does not assist me here.

[27] Mr Tennant discusses Fogarty J’s concept of the procedural requirements of s 177 as follows:¹⁷

In this regard Fogarty J is very useful in Ewebiyi. Fogarty J says that Parliament intended that officers must consider cancelling a deportation order if the facts presented about the deportee engage New Zealand’s international obligations. Fogarty J further states that if an immigration officer is not capable of identifying the relevant obligations and then selecting the relevant facts from the information at hand then he/she is not competent to apply s 177 appropriately.

[28] The legislative scheme of s 177 is thus that an applicant has no general right to apply for cancellation of their deportation order, but where personal circumstances of a humanitarian nature (which are relevant to New Zealand’s international

_{obligations), are brought to the attention of the decision-maker, then
the Immigration}

¹⁶Chief Executive of the Ministry of Business, Innovation and Employment v Liu, above n 13, at

Officer must consider cancelling the deportation order.¹⁸The decision-maker may reach such decision as he or she sees fit.¹⁹No particular test is required,²⁰nor further inquiry be made into the plaintiff’s circumstances, or any information provided about them generally.²¹Regardless of the decision, the decision-maker is not obliged to provide reasons, nor under the Official Information Act 1982 or the Privacy Act 1993 provide information which would disclose those reasons.²²

[29] That still leaves s 177(5) and how the obligation it imposes on the decision-maker is met, and whether the obligation to record “the facts about the person’s personal circumstances” is an integral part of the decision made. That obligation expressly only arises when the decision-maker does have regard to New Zealand international obligations, which in turn only arises when there are facts about the deportee’s personal circumstances which trigger the need to consider those obligations. There may be no such facts, and no such obligation on the decision-maker.

[30] The question turns on what Parliament intended when it required the decision-maker to record the international obligations and the facts about the deportee’s personal circumstances. Fogarty J addressed the purpose of s 177(5):²⁴

[45] To my mind the purpose is reasonably self evident. Parliament intended that immigration officers must consider cancelling a deportation order if the facts engage New Zealand’s international obligations. Not only did they impose a duty, they wanted the discharge of that duty evidenced in the decision. ...Parliament also wants it to be demonstrably the case that individual officers have considered any international obligations, the application of which is raised by the person’s personal circumstances. Given the officer is not bound to follow the international obligations, the need to record consideration of them, pertaining to the facts of the case, is so that it can be demonstrated to the domestic and international community that the

[31] It is beyond argument that the officer must consider the facts arising from the personal circumstances which engage New Zealand’s international obligations, and along with the decision there must be a record of those facts. The facts are only relevant if they do engage those obligations. New Zealand’s obligations are not fulfilled by a bookkeeping record of sources which have unidentified factual content, some known to the deportee, and some not.

[32] There is no reference in the decision to any facts about Mr Dong’s personal circumstances, other than the inference that some such facts are, or may be, in the itemised sources of information. Relevance as described cannot simply be inferred.

[33] Mr Deliu says that this is not enough and there must be some statement of the facts to which the decision-maker referred as relevant. Fogarty J considered that the purpose of s 177(5) called for a “crisp succinct description of the relevant international obligations”.²⁵

[34] It is true perhaps that following Singh, part of the purpose of this obligation to record may have fallen away. Approached in the way the Supreme Court endorsed in Ye, the purpose would be to demonstrate that the decision-maker has conducted the appropriate balancing exercise, but that has now been elided from the decision-maker’s role. The Court cannot require the decision-maker to take a particular approach, or to conduct a particular balancing exercise.

[35] There is also purpose in s 177(5) ensuring provision of information to the deportee so he or she can understand that relevant facts have been identified or not as the case may be. This would show that the decision-maker had identified relevant factual material which allowed a proper decision to be reached, even if the reasons are not disclosed. This is surely of importance to the Crown and those to whom it

[36] The applicant in Singh attempted to argue, on the strength of Cao v Ministry of Business, Innovation and Employment,²⁶that although there was no obligation to give reasons, nevertheless the decision-maker must have reasons. Mr Deliu cited Cao as the basis for his (somewhat reduced) argument, that:

If reasons can be required of an “absolute discretion” decision maker in Cao then de minimis the defendant ought to have complied with its statutory obligation to record the facts. The failure to do so is reviewable error.

[37] However, Mr Lange submitted that the Court in Singh confined the reasoning in Cao to the statutory context with which it was concerned (s 61), and that while the exercise of discretion under ss 61 and s 177 is “absolute”, the discretion under s 177 reflects an acute legislative history, and that it makes for a further limitation on

scrutiny of a decision of the Minister.²⁷The Court in Singh held that the statutory

language and legislative history of s 177 prescribe a basic procedural requirement of stating (recording) the material to which the decision-maker has referred, but this begs the question of whether the officer has at least had regard to any relevant facts. Without some statement of those facts, precisely what s 177(5) requires, that will never be known.

[38] There is something formulaic in the outcome which the Ministry seeks, that a

‘record of the record’ is enough and an inference should be drawn that if there are relevant facts they have been identified. It relies on an assumption of a fair exercise of the discretion which cannot be scrutinised, except to the extent it may disclose that some material has not been considered to glean relevant facts, or it may disclose some source material of which the deportee knows nothing.

[39] On the other hand, I consider that Mr Deliu goes too far in some respects. Requiring a detailed, analytical synthesis is tantamount to requiring disclosure of reasons and to put before the applicant material with which to impugn the way in

_{which the decision was reached. This would likely be on the basis of a
failure to take}

into account relevant considerations/taking into account irrelevant considerations. This is not the purpose of s 177(5).

[40] The discretion has been termed “absolute”. It is not completely without fetter. The Court in Singh accepted that the Court is still able to compel compliance with the terms of s 177,²⁸and an example is given when the record omits material which was available. To the extent that Ye required a decision-maker to apply a particular test or to give primacy to particular considerations, the statutory amendments to s 177 have overruled this. Whatever the legal position in Ye, and Huang,²⁹before it, the legislative amendment has restricted the scope of judicial review.³⁰

[41] I do not consider the restricted scope of judicial review espoused by the Court in Singh to have undermined the requirements of s 177(5). The Court in Singh considered that “Section 177 has severely circumscribed the scope for judicial review, effectively limiting it to a Wednesbury unreasonableness inquiry”.³¹

Reference to Wednesbury unreasonableness is qualified by the Court’s agreement

with the decision in Liu that judicial review was open at least “to check the

[64] ...s 177 imposes minimal obligations on the IO. He or she is required to record a description of the applicable international obligations and the relevant personal circumstances. Beyond those recording obligations, s 177 empowers the IO to “make a decision as he or she thinks fit”. By expressly not obliging the IO to give reasons for any decision, Parliament has narrowed the scope of judicial review to a Wednesbury type assessment.

[43] I consider the position to be as follows: narrowing judicial review in deportation proceedings to the level of Wednesbury unreasonableness in respect of

_{the decision is still subject to the court being satisfied that
compliance with the}

³⁰Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA

requirements of s 177 has been achieved. The restricted scope for judicial review must encompass whether the recording obligations have been met. The recording obligations have the purpose of demonstrating that the mandatory consideration of facts relevant to international obligations has proceeded from a proper foundation.

[44] Mr Deliu contends that the Ministry’s proposition as to the sufficiency of a “record of the record” is “inconsistent with the plain statutory language and really a purposeless exercise”. I agree, as the Ministry must record the relevant facts.

[45] I find that the process adopted by the Ministry, referring within the decision to New Zealand’s international obligations and to the source material considered, to be insufficient. The mere reference to the various sources of information, without identifying the most basic relevant facts drawn from them, does not comply with the statutory obligations under s 177(5). There may be no relevant facts. Then the requirements of s 177(2) fall away.

[46] The reference to “the entire contents of Mr Dong’s file” is wanting in itself for its lack of specificity. This does not demonstrate any identification of relevant facts. The entirety of Mr Dong’s immigration file cannot be relevant, such as file notes relating to the suspicions about Mr Dong’s initial visa. The Ministry has, I find, told the plaintiff that such matters were not part of the decision-making process. The sweeping reference to source material does not demonstrate that the decision-maker has turned his or her mind to relevant facts.

[47] It follows from the discussion above that I do not consider Fogarty J’s approach in Ewebiyi to have been undone by Singh. In Singh the Court recognised that it was important that New Zealand be seen to comply with its international obligations, and was conscious of the need to preserve justiciability of the s 177 process.

[48] The Court will not interfere where the decision-maker has, on the face of the decision, complied with what are now the limited requirements of s 177, but where there is some doubt as to even the type of facts that the decision-maker considered

relevant (which could be identified by a simple note in, or with the decision), I consider that the statutory requirements have not been met. Such is clearly the case here.

[49] A decision about the facts is expressly not required, but a record of “the facts”, if there are any, is expressly required. This might be a brief statement along the lines:

[50] Mr Dong may gain little by the decision-maker being required to state the relevant facts in its 21 April decision. The same outcome for Mr Dong may well apply in an unchallengeable way. I am loathe however to have the Ministry simply mark this judgment for future reference. The judicial review is successful in this regard.

[51] Section 177(5) is not a tail wind to the section. It requires something, which for the purpose of anyone looking at the decision demonstrates an important and mandatory obligation to consider relevant facts has been met. The relief granted is set out at the end of this judgment.

[53] Mr Deliu relies largely on inferences drawn from the correspondence and affidavit evidence before the Court as to what happened behind the scenes in the decision-making process. No leave was sought to cross-examine witnesses who swore affidavits and I make my findings on the record before me.

involvement in the process (based on the assertion that they were never removed from the process or recused themselves), tainted the ultimate decision. The decision was made by Mr Scott, as I discuss further. The plaintiff raised other points about deficiencies with the decision reached which do not rely on the continued involvement of the initial case officers.

[55] The plaintiff submits that the initial refusal to conduct a partnership interview and request legal submissions amounts to an error of law. Mr Deliu says that these refusals, coupled with the stance that deportation would proceed if travel documents arrived for Mr Dong, demonstrates bias and predetermination to so taint the decision-making process that it should now start over.

[56] Shortly after these refusals expressed through its officers Mr Paterson and Ms Case, the Ministry changed course and a partnership interview was conducted and submissions received. The travel documents did not arrive and Mr Dong was not deported before the s 177 reconsideration was completed.

[57] The initial refusals to conduct a partnership interview or accept legal submissions in my view would have restricted the humanitarian information necessary to decision-making. However, the obligation to consider personal circumstances does not instigate a particular enquiring methodology by the Ministry. Despite that, as Mr Deliu submits, these procedures are usually conducted as a matter of course by the Ministry in proceedings of this kind.³⁴

[58] Mr Deliu also pointed to Article 9 of the United Nations Convention on the Rights of the Child, which highlights the significance of a child potentially being separated from parents. I do not consider this case and its policy concerns to be analogous. The better support for requiring interviews and submissions rests on

³⁴See Fang v Ministry of Business, Innovation and Employment [2015] NZHC 2059, Liu v Chief

[59] I do not consider that the position taken by the Ministry, that the plaintiff could be deported at any time if travel documents arrived, was legitimate. The language of s 177 is clear: if humanitarian circumstances relevant to New Zealand’s international obligations are brought to the immigration officer’s notice, the officer must consider cancelling the deportation order. That involves fact identification and weighing those facts against New Zealand’s international obligations. This requires putting on hold the applicant’s deportation until that balancing exercise has been undertaken.

[60] The plaintiff submits that these officers remained involved right up until the decision itself was made, but to a large extent this is based on factual assertions which in the main I do not consider have been made out. I am satisfied on the evidence that the plaintiff’s request that different case officers be involved was acted on, although not expressly communicated in terms answering Mr Deliu’s “request for recusal”. I am satisfied that Mr Scott addressed the plaintiff’s application on a “without prejudice” basis in response to the plaintiff’s legitimate concerns about the stance taken by Mr Paterson and Ms Case. From this point on, these two officers played no further part in Mr Dong’s application.

[61] Mr Deliu submits that on 6 April 2016, Mr Paterson sought to interview Mr Dong’s friend, Eric Fung. At first Mr Dong contended that information gained should have been part of the plaintiff’s s 177 application, and the Ministry erred in law by failing to take this into account as a relevant consideration. This point was abandoned at the 17 May hearing, however the circumstances around Mr Fung’s involvement are still relevant to Mr Deliu’s argument that Mr Paterson remained involved with the plaintiff’s s 177 application.

call was regarding the plaintiff as he was driving my van on the day that he was

caught”.³⁵The call is said to have been in anticipation of an interview later that day, although such an interview did not, it seems, take place. Instead, Mr Fung deposes that on 19 April 2016, he was visited by a compliance officer, Mr Cronin, and he was asked about the plaintiff and his work. Mr Fung says that he was told that Mr Paterson was still in charge of the application.³⁶

[63] Mr Scott deposed that Mr Fung is the subject of a separate investigation. Mr Paterson is involved in that matter.³⁷Mr Deliu alleges that Mr Paterson’s status as a “compliance” officer is such that he has no mandate for the investigation of such matters, and that the inference must be that his involvement was in respect of Mr Dong’s application. However, Mr Deliu can point to no evidence of this.

[64] I find that the Ministry’s explanation of the correspondence and involvement of Mr Fung is correct. It explains the reasons for Mr Cronin’s visit on 19 April 2016, and the questions then put to Mr Fung. It explains the remark about Mr Paterson’s involvement which I find was not to determine Mr Dong’s application.

[65] The identity of the decision-maker is clear enough. Mr Scott was involved from 29 March 2016. There is a wealth of reference in the correspondence to this end.

[66] I find that Mr Scott was involved in a coherent decision-making process from

29 March 2016, and as evidenced by the decision of 21 April, he had access to material obtained before and after he became involved.

[67] Mr Deliu says that the 21 April decision purports to have been made by Mr Scott, but bears the signature of Ms Jackson. I do not think this says much. She was Mr Scott’s manager, and her “signing off” of the decision was an internal step.³⁸

The decision clearly purports to have been made by Mr Scott. I do not think it can

correspondence from Ms Jackson of 8 and 11 April 2016 identifies Mr Scott as the decision-maker.

[68] Furthermore, I do not consider that the decision-making process was unsatisfactorily “fragmented” as Mr Dong contends. I find that there was one relevant decision-maker involved in the decision-making process, and that was Mr Scott. Whilst he did not conduct the humanitarian interview of Mr Dong, he did conduct the partnership interview of Mr Dong and his wife, and, as indicated by the decision of 21 April, he had regard to the record of interview with Mr Dong.

[69] Although the Ministry made an initial error of law through its officers in the early stages, I do not consider that Mr Paterson and Ms Case were relevant actors in the decision-making process, when Mr Scott made his decision or after the allocation of the plaintiff’s application to Mr Scott on 29 March. The plaintiff must point to something that shows that this error of law has continued to blight the decision-making process, and in particular the decision reached by Mr Scott.

[70] The question goes beyond error of law to whether the relief sought should be granted. The position is as follows. After the removal of officers Paterson and Case, Mr Scott did not think it necessary to re-interview the plaintiff, and I do not consider that he had an obligation to do so. However, he did immediately agree to receive legal submissions, and duly conducted the partnership interview. I do not consider that this was a “mere window-dressing exercise” as the plaintiff alleges. There is no evidence of this. The state of affairs brought about by the error of law was largely rectified by the removal of the officers involved, and the decision was not contaminated by the error.

arguments why Mr Scott’s decision-making was flawed in and of itself, or inherited earlier flaws in the process which are said to show bias and predetermination.

[72] First, Mr Deliu says that Mr Scott, if the decision-maker, could not have properly discharged his obligations because he did not conduct the humanitarian interview with Mr Dong, or the partnership interview with Ms Liu. Mr Scott has never met Mr Dong. The plaintiff submits that Mr Scott could not have turned his mind to all the relevant facts, because he never satisfied himself that all the relevant facts had in fact been obtained. I disagree. There is nothing in s 177 to direct such a course.

[73] Mr Deliu says that the statutory wording of s 177 contemplated a single immigration officer undertaking all procedures to reach a decision. He referred to articulation of the decision-maker in the section as “an immigration officer”. I do not think that much can be said for the use of the indefinite article. In any case, the statutory obligations are clear: the immigration officer (here to be read as the ultimate decision-maker, in this case Mr Scott), is required to have regard to the necessary matters. He or she must be able to rely on sources compiled by colleagues and subordinates.

[74] Mr Deliu says that the decision can be impugned on the basis that Mr Scott relied on a record of the interview conducted by Mr Paterson and Ms Case, which was characterised by bias and predetermination. Mr Scott’s decision is said to have been tainted because of his reliance on Mr Paterson’s record. I cannot see the weight in this. It has not been alleged that Mr Scott relied on views formed by Mr Paterson. He has, by the terms of the decision, simply relied on the facts recorded in that interview process. I do not consider that Mr Paterson’s participation in producing a record of the interview means that Mr Scott’s decision has been tainted with actual or apparent bias.

[75] More generally, Mr Deliu says that there is an apparent bias operating that colours the decision made by Mr Scott, stemming from the initial actions of the case officers in circumstances where, he says, there was no excision of those persons from the process.

[76] Out of an uneasy judicial history, the test for apparent bias has settled in New Zealand. In Muir v Commissioner of Inland Revenue, the Court of Appeal referred to what the “fair-minded lay observer” would make of the circumstances observed.³⁹That includes information to which the general public might not have had access, but how things might appear to those associated in some way with the decision-maker.⁴⁰

[77] I consider that the process disclosed in the correspondence between the parties would be something to which the fair-minded observer would be able to have regard. I simply do not consider that such an observer would or should come to the conclusion that the decision was tainted with the appearance of bias. The appearance of bias such as to warrant judicial review is set at a high threshold, and must be clearly made out.

[78] The correspondence indicates clearly that officers Paterson and Case were no longer an active part of Mr Dong’s s 177 process from at least 29 March. This fact was emphasised to the plaintiff on several occasions. Mr Scott conducted most of the remainder of the s 177 process. The involvement of Mr Fung was, I consider, a red herring. A fair-minded lay observer would not have concluded that Mr Paterson’s investigation of Mr Fung was a part of the plaintiff’s application such as to taint it.

[79] I do not find that the plaintiff has made out a case for either real or apparent bias such as would taint the decision of Mr Scott and justify relief. This ground of judicial review fails.

[80] The plaintiff contends that several steps taken by the Ministry during the process contravene principles of natural justice, contrary to s 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA).

³⁹_{Muir v Commissioner of Inland Revenue [2007] NZCA
334, [2007] 3 NZLR 495.}

fraudulently, but at the same time had regard to them during the decision-making process.

[82] During the humanitarian interview, Mr Paterson raised these suspicions, and the plaintiff submits that this was the first he had been made aware of such. He had not been given an opportunity to respond.

[83] The difficulty in this argument, as with the grounds of bias, is that the plaintiff has not shown a link between what, if anything, Mr Paterson might have done, and the decision of 21 April reached by the decision-maker, Mr Scott. It follows from my conclusions regarding the question of recusal and the identity of the decision-maker that this link is not self-evident. Mr Deliu submits that “the fact that [Mr Paterson] went on and enquired about the issue must have played a part in the Ministry’s officers’ decision-making”. I do not consider that this assertion has any merits. Mr Paterson was not the decision-maker.

[84] The argument might be made that the Alert Notes which disclosed suspicions of fraud were part of “the full case details held by Immigration New Zealand”, which the 21 April decision indicate were taken into consideration. This is a good reflection of the problem with this catch-all provision being included and why I consider its inclusion to be inadequate compliance with s 177. We simply do not know by that statement, what was in fact taken into account. The corollary is that there is no obligation on the decision-maker to specify particular matters that were not taken into consideration. However, Mr Scott says although he was aware of the content of the Alert Notes, “[he] did not take this information into account in coming to [his]

[85] The evidence therefore discloses an express avowal that this information did

[86] The Ministry’s internal policy guideline E7.15, grants an applicant’s right of

reply to prejudicial information where a decision is made on the basis of any prejudicial information. I find that the potentially prejudicial information in the Alert

Notes did not form part of Mr Scott’s decision, so it was not necessary to give

[87] In these circumstances I do not consider that there has been a breach of the

plaintiff’s rights to natural justice under the NZBORA. [88] This ground of judicial review therefore fails. The discontinued grounds

[90] This ground concerned the Ministry’s statutory obligations of disclosure under the Official Information Act 1982 and Public Records Act 2005, in relation to the identity of the decision-maker. Were this point for decision, given the finding the decision-maker was known, especially in terms of the Ministry’s correspondence with the plaintiff and Mr Deliu, there is nothing in it.

[91] The plaintiff initially submitted that the evidence obtained in the interview of Mr Fung, whatever that might have been, should have been taken into account as part of Mr Dong’s s 177 application. He did not say what might give rise to an obligation to consider that evidence, beyond the assertion that the evidence must have been relevant because Mr Fung was sought out. This point was no longer pursued at the hearing on 17 May 2016.

[92] I have found the plaintiff to have been unsuccessful on all grounds advanced but one. In particular, I find the procedure leading up to the decision to be beyond reproach. However, I consider that the decision of 21 April is not sufficiently compliant with s 177(5), properly construed, and I therefore remit the decision to the defendant for articulation of relevant facts, if there are any, in terms of this judgment.

I consider that s 177(5) is so closely aligned with the decision, either as part of it, or standing with it, that it must be addressed in this case by stating the relevant facts so as to identify what engaged New Zealand’s international obligations.

[93] Mr Dong’s deportation is stayed pending the defendant stating the relevant

_{Section 58 of the Immigration Act} ^{1987 prior to the 2009 Amendments}	_{Section 177 of the Immigration Act} 2009 (reflecting the amendments to s 58 of the Immigration Act 1987
58(1)	177(1)
An immigration officer ... may, at any time while the person named in the removal order is still in New Zealand, cancel a removal order that has been served...	An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.
58(5)	177(2) (from s 58(5))
Nothing in this section gives any person a right to apply to an immigration officer for the cancellation of a removal order, and where any person purports to so apply-	Nothing in this section gives a person a right to apply to an immigration officer for the cancellation of a removal 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.
58(5)(a)	177(3) (from s 58(6))
The immigration officer is under no obligation to consider the application and	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.

58(5)(b)	177(4) from s 58(7))
Whether the application is considered or not,- (i) The immigration officer is under no obligation to give reasons for any decision relating to the application, other than the reason that this subsection applies, and (ii) Section 23 of the Official Information Act 1982 does not apply in respect of the application.	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 (ab) privacy principle 6 (which relates to access to personal information and is set out in section 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application; and (b) section 23 of the Official Information Act 1982 does not apply in respect of the decision.
N/A	177(5) (from s 58(8))
	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. _{(b) The facts about the person’s personal} ^{circumstances.}

UNDER THE	Judicature Amendment Act 1972
IN THE MATTER OF	An application for Judicial Review of a decision not to cancel a deportation order made under s 177 of the Immigration Act 2009
BETWEEN	DEFANG DONG Plaintiff
AND	THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Defendant

Hearing:	22 April 2016 17 May 2016
Appearances:	F C Deliu for the Plaintiff C J Lange for the Defendant
_Judgment:	_{30 June 2016}

The facts about the person’s personal circumstances	√	Yes	No
are recorded in this template:
Further information is attached to this decision:	√	Yes	No

√	Yes	You must consider the application of those obligations to the person’s
		case. List below the obligations you have considered when making your decision.
	No	Indicate this below.

High Court of New Zealand Decisions

Dong v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 1468; [2016] 3 NZLR 357 (30 June 2016)