Li v Ministry of Business, Innovation and Employment [2016] NZHC 1788 (3 August 2016)

Last Updated: 10 October 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2730 [2016] NZHC 1788

BETWEEN	ZHIWEI LI Plaintiff
AND	MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Defendant

Hearing:	5 May 2016
Appearances:	F C Deliu for Plaintiff D J Collins and O M Klaassen for Defendant
Judgment:	3 August 2016

_{JUDGMENT OF PAUL DAVISON J}

This judgment was delivered by me on 3 August 2016 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland

LI v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 1788 [3 August 2016]

Introduction

[1] The plaintiff, Mr Zhiwie “Tom” Li, has remained unlawfully in New Zealand

since 10 May 2010. He was served with a deportation order on 15 October 2012.

[2] He applies for judicial review and challenges the decision of the Immigration Officer (the IO) not to cancel the deportation order under s 177 of the Immigration Act (the Act). He advances three grounds of review¹ but in argument, places principal emphasis upon one, namely:

the defendant erred in law in failing to consider the record of personal circumstances, only noting the international obligations generically, and erred in not selecting the relevant facts to which these international obligations apply.

Background

[3] Mr Li arrived in New Zealand on a student visa in November 2002. Mr Li met Mrs Wang in Singapore in 2002 and they married in New Zealand in July 2004. Shortly after their wedding, Mrs Wang returned to Taiwan because her father was ill and she wished to complete some employment obligations. She joined Mr Li in New Zealand in November 2006 and in May 2012, she obtained a resident visa.

[4] They have a son named Tian-Yu Li (Terry) born in Taiwan in January 2008. Like his mother, Terry holds a Taiwanese passport. Mr Li holds a Chinese passport.

[5] Mr Li’s visa expired on 9 May 2010. He has been unlawfully in New

Zealand since then.

Mr Li applies for a work visa

[6] Shortly before his visa was due to expire, Mr Li had applied for a work visa which was considered and declined on 7 December 2010. As his visa had expired on

_{9 May 2010, he was advised by Immigration New Zealand (INZ) to leave New}

¹ They are: (1) Wednesbury unreasonableness (error of law); (2) Breach of legitimate expectation, or in the alternative, breach of natural justice /Wednesbury unreasonableness (failure to take relevant considerations into account and/or taking irrelevant considerations into account); and (3) Wednesbury unreasonableness (“plainly wrong”).

Zealand immediately but failed to do so.

[7] Before a decision was made, a series of letters identifying potentially prejudicial information were sent to Mr Li requesting him to, among other things:²

(a) resubmit a fully completed application form because he had failed to

declare his use of an alias name, “Tom Lee”;

(b) comment on offences³ that he had been charged with on 5 March

2010, but which he had not declared in his application form;

(c) respond to information which INZ had received from a third party, to the effect that he had been working unlawfully whilst in New Zealand.

[8] On 7 December 2010, INZ declined his application for a work visa on the basis that he was not a bona fide applicant. The IO wrote:

... you have been working, or in employment, for long periods while not holding a valid permit to do so.

...

I have also considered whether there are any special circumstances that would warrant an exception to immigration instructions including the fact your wife is intending to continue her studies in NZ, but I am not satisfied your circumstances justify the grant of a visa as an exception.

[9] On 21 February 2011, Mr David Andrews, INZ branch manager, confirmed the IO’s decision and added:

I have reviewed the assessment made and am satisfied that all relevant factors were taken into consideration in reaching this decision.

... While the final decision to decline was made on the basis of the bona fides alone, this matter of criminal offences and non-discloser [sic] to Immigration New Zealand has not been deemed ‘immaterial’.

² _{The letters are dated 22 June 2010; 25 August 2010; and 22 October 2010 respectively.}

³ Under the Education Act 1989, s 292.

[10] On 28 October 2011, Mr Li requested from the Minister the grant of a work visa, as a special case, under s 61 of the Act. This was declined on 10 November

2011. He was again advised by INZ to leave the country but failed to do so.

[11] On 15 October 2012, Mr Li was charged with one count of obtaining by deception.⁴ That same day, he was served with a deportation order⁵ and a deportation liability notice.⁶ It was agreed on 17 October 2012 that the enforcement of the deportation order would be deferred pending determination of the criminal proceedings.

Mr Li receives a criminal conviction

[12] On 29 April 2015, Mr Li was convicted on the charge of obtaining by deception at a Judge-alone trial. The circumstances of the offending went back to late 2008, and I summarise them below.

[13] In about September 2008, Screentime, a television production company, undertook investigative journalism for a series it was producing for TVNZ to determine whether it was possible to purchase tertiary qualifications in New Zealand. As part of the investigation, a Screentime employee (using the name Mr Chen) answered an advertisement published in the Mandarin Times, and which had been placed by Mr Li.

[14] Following a series of interactions between Mr Li and Mr Chen, and in exchange for $12,000, Mr Li presented Mr Chen with an academic transcript and diploma issued by the New Zealand Academy of Studies (NZAS) despite Mr Chen not having undertaken any course of study. In July 2009, Mr Chen received a New Zealand Qualifications Authority (NZQA) certificate certifying that he had completed a New Zealand Diploma in Business (level 6), having completed the

_{prescribed course of study at the NZAS.}

⁴ _{Crimes Act 1961, s 240 (1)(a).}

⁵ _{Immigration Act 2009, s 175.}

⁶ Immigration Act, s 154.

[15] All meetings and telephone calls between Mr Chen and Mr Li were recorded by Screentime in its television series “Illegal New Zealand”, which was broadcast in August 2009.

[16] Screentime notified NZQA of the content of its programme, and NZQA in turn made a complaint to the Police, which led to a police investigation. Mr Li was consequently charged with obtaining the NZQA diploma by deception, and on 29

April 2015, following a defended Judge-alone trial, he was found guilty on that charge. He was subsequently sentenced to four months’ home detention, with post- detention conditions for four months.

[17] Mr Li appealed his conviction out of time. The Court of Appeal dismissed the appeal in its judgment dated 31 May 2016.⁷

The Criminal Proceeds (Recovery) Act 2009 proceedings

[18] On 1 September 2015, the Commissioner of Police commenced proceedings in the High Court against Mr Li under the Criminal Proceeds (Recovery) Act 2009, and sought restraining orders. On 4 September 2015, this Court granted a without notice application for restraining orders against a residential property and the contents of three ANZ bank accounts, two ASB bank accounts, and two Kiwibank accounts owned by the plaintiff and his wife, Mrs Wang. That same day, Mr Li and Mrs Wang attempted to circumvent the restraining orders made on 4 September

2015, causing the Commissioner to make an application resulting in a further restraining order being made by this Court on 11 September 2015.⁸

[19] Mr Li has since filed an application seeking to vary an existing restraining order which is in place. Those proceedings are yet to be determined.

⁷ Li v R [2016] NZCA 237. But the Court granted extension of time to appeal against his conviction.

⁸ On 7 September 2015, the Police learned that shortly after Mr Li and Mrs Wang had been informed of the restraining orders affecting their ASB accounts, the sum of $247,752 had been transferred out of one of the restrained ANZ accounts, and then $223,000 had been paid into another ANZ account in the name of Mrs Wang. The following day, Mr Li, notwithstanding that he was serving a term of home detention, attended a local branch of the ANZ Bank and attempted to open a new customer profile so that he could open new accounts.

The IO considers whether to cancel Mr Li’s deportation order

[20] By agreement between the parties, the consequences of Mr Li’s deportation liability notice, and the enforcement of the deportation order, were deferred until after the criminal proceedings against him were determined in 2015.

[21] Earlier in November 2012, INZ advised Mr Li’s counsel that:

At the conclusion of the criminal matters, INZ will continue the deportation process and Mr Li will have the opportunity to participate in a record of personal circumstances interview. If the information is relevant to New Zealand’s international obligations, INZ will consider cancelling the deportation order.

[22] The Record of Personal Circumstances (RPC) interview of Mr Li was held on

23 September 2015, and on the same day, his wife was also interviewed in what is

termed a “Partnership Interview”.⁹

[23] After the RPC interview, the IO advised Mr Li and Mrs Wang, and their agent, that if they wished they could provide further documentation and submissions, and on 30 September 2015, Mr Li’s immigration consultant submitted further materials and information to INZ, covering his family life, health and character; Chinese visa issues; and New Zealand’s relevant international obligations as contained in the United Nations Convention on the Rights of the Child (UNCROC), and the International Covenant on Civil and Political Rights (ICCPR), together with additional supporting materials.

[24] On 7 October 2015, the IO made an information request to the INZ specialist Country Research Branch (CRB), requesting information on a number of questions relating to: the status of a Taiwanese spouse of a Chinese citizen in China; the status of a Chinese spouse of a Taiwanese citizen in Taiwan; Chinese and Taiwanese immigration policies; and access to primary schooling in both countries.

_{[25] The CRB responded with the requested information on 13 October 2015.}

⁹ The RPC and Partnership templates have been completed by the IO in a handwritten narrative.

They were been signed by the IO, Mr Li and an interpreter (RPC) and Mrs Wang and the IO (Partnership).

The IO’s decision not to cancel the deportation order served on Mr Li (s 177)

[26] On 15 October 2015, the IO decided not to cancel Mr Li’s deportation order. The decision was reviewed and affirmed by the IO’s manager on 19 October 2015.

[27] The IO’s decision relevantly states:

The facts about the person’s personal circumstances are recorded in this

template.

Yes No

Further information is attached to this decision. Yes No

[60 documents listed, including the partnership interview conducted on 23

September 2015, and the submissions received from Mr Li’s Immigration

Advisers, NZ Now Ltd (Jamee Zohs)]

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

obligations, identified as being relevant to the deportation decision?

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.

...

I have had regard to the following international obligations

[international obligations listed]

...

I have carefully considered the person’s personal circumstances and any

applicable international obligations.

I am not obliged to provide reasons for my decision by virtue of section

177(4)(a) of the Immigration Act 2009.

[28] It is this decision which Mr Li challenges and in respect of which he applies for judicial review.

The scope for judicial review of a s 177 decision

[29] Section s 177 sits within part 6 of the Act, which deals with deportation. It provides:

177 Deportation order may be cancelled

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

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

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

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

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

(i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or

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

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

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

(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—

(a) a description of the international obligations; and

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

[30] Section 177 was described by the Court of Appeal in Singh v Chief Executive, Ministry of Business, Innovation and Employment as a deportee’s “last ditch” opportunity to have cancelled a deportation order made as a result of the detailed and careful deportation process.¹⁰

[31] In that decision, the Court reiterated the purpose of the Act, and part 6 of the

Act specifically:¹¹

First, the Act aims to balance New Zealand’s interest (in not permitting people to be in this country unlawfully) with the rights of individuals...

Second, pt 6 of the Act, dealing with deportation, has the purpose of supporting the integrity of New Zealand’s immigration system... that system is summarised in s 3(2). As s 3(2)(a) spells out, this country’s immigration system requires persons who are not New Zealand citizens to hold a visa to travel to New Zealand and to hold a visa and be granted entry permission to stay in New Zealand.

[32] The Court then set out seven observations in respect of s 177. In the words of

Wild J, delivering judgment for the Court, they are:¹²

(a) The IO’s discretion to cancel a deportation order is absolute.¹³

(b) The section is triggered by the provision to the IO of information concerning the deportee’s personal circumstances – information that is “relevant to New Zealand’s international obligations”.

(c) If the IO does consider cancelling a deportation order, the IO must “have regard to” any relevant international obligations (s 177(3)). The term “have regard to” means to have “an open and receptive mind...”¹⁴ What, if any, weight the IO attaches to those obligations is

_{a matter for the IO to decide.}

¹⁰ _{Singh v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592.}

¹¹ _{At [12]-[13].}

¹² _{At [15].}

¹³ _{See also s 11, wherein the term “absolute discretion” is defined.}

¹⁴ Citing McMullin J in New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 566. See also Te Runanga O Raukawa Inc v Treaty of Waitangi Fisheries Commission CA178/97, 14 October 1997 at 8; Greenpeace New Zealand Inc

(d) Section 177(3)(b) negates any obligation to apply any particular test or inquire into the circumstances. This was a direct response by Parliament to the decisions of the Supreme Court in Ye v Minister of Immigration and Huang v Minister of Immigration.¹⁵ The Explanatory Note to the Supplementary Order Paper that introduced those amendments to the Bill expressly states the amendments were to

reverse the “future effect” of Ye and Huang.

(e) The IO is not obliged to give reasons for his or her decision, whichever way it goes.

(f) The application of s 23 of the Official Information Act 1982 (right of access by a person to reasons for decisions affecting that person) is expressly ousted.

(g) To the extent that 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.

[33] Under the heading “Test in New Zealand for judicial review of an immigration decision”, the Court considered several authorities on the scope for judicial review of a s 177 decision and said: ¹⁶

We agree with those observations. Section 177 has severely circumscribed the scope for judicial review, effectively limiting it to a Wednesbury unreasonableness inquiry.

...

... a reviewing court can check the IO’s compliance with the requirements of s 177, particularly s 177(5). Beyond that, the fact that the IO is not obliged to give reasons for his or her decision represents an obvious obstacle to the court reviewing whether the best interests of an affected child have genuinely been taken into account by the IO.

v Minister of Fisheries HC Wellington CP492/93, 27 November 1995 at 25-26; New Zealand

Co-operative Dairy Company Ltd v Commerce Commission [1992] 1 NZLR 601 (HC) at 612-

_613.

¹⁵ Ye v Minister of Immigration [2009] NZSC 77, [2010] 1 NZLR 104; Huang v Minister of

_{Immigration [2009] NZSC 77, [2010] 1 NZLR 135.}

¹⁶ At [46] and [50].

Judicial review of the IO’s compliance with the requirements of s 177(5)

(namely, “the recording obligation”)

[34] There are four decisions that address and consider the IO’s recording

obligation under s 177(5), which is amenable to judicial review. [35] They are summarised below.

Decision 1: Babulal v Chief Executive, Department of Labour (decision of Lang J)

[36] In Babulal v Chief Executive, Department of Labour, Lang J said that the scope of judicial review of decisions made under s 177 is “extremely limited.”¹⁷ He further observed:¹⁸

[Parliament] accepted that the court must have sufficient information to be able to determine whether the immigration officer who made the decision took into account the international obligations relevant to the particular case. The requirement to record the facts relating to the personal circumstances of the person subject to the deportation order also provides the court with the ability to determine whether the ultimate decision is reasonable in a Wednesbury sense, but no more than that.

[37] This comment was explicitly approved by the Court of Appeal in Singh, as mentioned above.

[38] In reaching the view that the scope for review is extremely limited, his

Honour explained:¹⁹

The wording of [s 177] leads me to conclude that Parliament clearly intended the scope for judicial review of decisions made under s 177 to be extremely limited. In keeping with its commitment to observe its international obligations, however, Parliament did not word s 177 so as to completely exclude judicial review of all decisions made under s 177.

... judicial review will continue to be available where there is a challenge to a decision based on an alleged failure by an immigration officer to have regard to New Zealand’s international obligations when reaching his or her decision.

¹⁷ Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773, 29

_{September 2011.}

¹⁸ _{At [36] (emphasis added).}

¹⁹ At [29], [32], [33] (footnotes omitted).

... The absence of any requirement to give reasons tells against an expectation by Parliament that the decision will be subject to close scrutiny by the courts, because a lack of reasons will virtually inevitably compromise such an undertaking. As a result, even if the court wished to take a “hard” or “anxious” look at such a decision, it would struggle to do so.

[39] In that case, counsel for Mr Babulal (Dr Deliu, who is also counsel for Mr Li) submitted that the recording obligation contained in s 177(5) required the IO to record the facts about Mr Babulal’s personal circumstances. He submitted that there was a reviewable error because all that the IO had done was list the documents that contained the relevant facts about Mr Babulal’s personal circumstances, rather than record the facts themselves.

[40] Lang J rejected the submission that there was such an onerous requirement. His Honour explained:²⁰

...[this is] principally because it flies in the face of the language used throughout s 177. Taken as a whole, the section imposes minimal formal requirements upon immigration officers who exercise the discretion vested in them under the section. If the submission is correct, immigration officers would potentially become subject to an onerous obligation to record in narrative form every relevant fact about the person’s personal circumstances. If they failed to do so, they would commit a reviewable error.

The section contemplates the immigration officer recording the material facts upon which his or her decision is based. That can be done either by recording the facts in narrative form or by listing and/or describing the documents in which the facts are bound to be found. In the present case [the IO] adopted the latter technique.

Decision 2: Ewebiyi v Parr (decision of Fogarty J)

[41] In Ewebiyi v Parr, Fogarty J was also asked to determine the extent of the

IO’s recording obligation imposed by s 177(5).²¹

[42] When considering the purpose of ss 5, Fogarty J posited:²²

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 that decision...

²⁰ _{At [74]–[75].}

²¹ _{Ewebiyi v Parr HC Christchurch CIV-2011-409-2010, 7 December 2011.}

²² At [45] and [54].

[Parliament] 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 purpose of these provisions is so that New Zealand’s international obligations are taken seriously.

...

If the Courts do not enforce subs (5) they will enable immigration officers to avoid the duty to consider cancellation, and thereby avoid the requirement to “have regard to any relevant international obligations” ( s 177(3)).

[43] His Honour then went on to say what it is that the IO is obliged by ss (5) to do:²³

A generic reference to any one of a range of possible applicable international obligations is not a discharge of the obligation of the officer to record a “description of the international obligations”. Plainly, the word “relevant” in s 177(3) requires selection from the body of international obligations. That selection should be recorded, s 177(5). The qualifier “relevant” is not repeated, but is not necessary, as it is only the relevant obligations that must be taken into account.

Subsection (5) read in line with its purpose, is calling for a crisp succinct description of the relevant international obligations. Similarly, does it make sense for the obligation to record the facts about the person’s personal circumstances to include facts utterly relevant to compliance with New Zealand’s international obligations.

[44] In that case, the facts were not recorded in the IO’s decision not to cancel the deportation order but were located in the RPC interview, to which reference was made. Fogarty J said this was a reviewable error, adding:²⁴

This is a system error as the RPC form assumes, wrongly, that all information collected in the interview is relevant. That cannot be right. Relevance is a qualifier applied to facts which are made relevant by considering them against the relevant international obligations. That is why subs (5) naturally orders: (a) international obligations, before (b) facts. If an immigration officer is not capable of identifying the relevant obligations and then selecting the relevant facts from the information at hand, the officer is not competent to apply s 177(3) and discharge subs (5).

[45] Fogarty J considered “the breach of subs (5) is a very material error of law”

_{and ordered that the decision be set aside (noting that the Court will not always}

²³ _{At [55]–[56].}

²⁴ At [57].

intervene when it identifies an error of law in a decision making process).²⁵ Pursuant to s 4(5) of the Judicature Amendment Act 1972, his Honour directed that the decision be remitted back to Immigration New Zealand so that an IO could consider cancelling the deportation order afresh and in accordance with law.

Decision 3: Fang v Ministry of Business, Innovation and Employment (decision of

Duffy J)

[46] The High Court in Fang v Ministry of Business, Innovation and Employment was again asked to consider whether an IO is obliged to record the relevant facts against the relevant international obligations when deciding whether to cancel a deportation order.²⁶

[47] Again, in that case, the IO had identified the relevant international obligations without selecting the relevant facts to which those international obligations applied. The RPC interview simply referred to the place where those relevant facts could be found.

[48] Dr Deliu argued there, as he does here, that the IO failed to discharge the recording obligation under s 177(5) and this error fell within the scope of judicial review.

[49] In that case, Duffy J said Fogarty and Lang JJ’s decisions present conflicting authority on the scope of the IO’s obligations under s 177(5). Her Honour explained:²⁷

One line of authority, exemplified in Babulal v Chief Executive, Department of Labour, finds that it will be enough if: (a) the relevant international obligations are listed; and (b) the facts about the proposed deportee’s personal circumstances are recorded. The other line of authority, demonstrated in Ewebiyi v Parr, requires the immigration officer to go one step further and to identify the personal circumstances which are relevant to each of the international obligations.

²⁵ _{At [71].}

²⁶ _{Fang v Ministry of Business, Innovation and Employment [2016] NZHC 1630.}

²⁷ At [9] (footnotes omitted).

[50] Duffy J considered herself bound by the Babulal approach because Lang J’s decision was expressly referred to with approval by the Court of Appeal in Singh. She observed that in Babulal:²⁸

all that the immigration officer did was to list the relevant international obligations to which he or she had regard as well as to itemise the various statements taken from Mr Babulal and other relevant persons recording his personal circumstances. How those statements might relate to the listed international obligations was left unsaid.

[51] This led Duffy J to conclude:²⁹

a decision which follows the form of the decision in Babulal will comply with the requirements of s 177, and in particular s 177(5).

[52] The Judge however set out Fogarty J’s comments in Ewebiyi, and made the following remarks:³⁰

The result in Ewebiyi was that the Judge concluded that a decision which seemingly followed the form of the decision in Babulal did not comply with s 177(5), and therefore was an error of law.

I consider that there are sound policy reasons for the interpretation Ewebiyi took of s 177(5). Unless some recorded connection is drawn between the relevant personal circumstances of a deportee and the relevant international obligations which are engaged by those circumstances there is virtually no way to determine whether an immigration officer has properly applied his or her mind to the few mandatory considerations imposed by s 177(5), or even whether the immigration officer has acted in good faith when refusing to cancel a deportation order.... I do not consider that Parliament could have intended an outcome where the supervisory Courts were effectively stymied from ascertaining if proper regard had been paid to s 177(5)’s mandatory considerations. Nor do I consider that a supervisory Court can effectively ascertain if proper regard has been paid to s 177(5)’s mandatory considerations when all that is before it is a list of the international obligations the immigration officer considered relevant and a series of references by subject heading to all the material that was available to the immigration officer about the deportee’s personal circumstances.

[53] The Judge concluded:³¹

In the present case I consider that the decision in Singh leaves me with no option but to find that the decision under review, which follows the form of the decisions that were made by the immigration officers in Singh and

²⁸ _{At [22] (footnote omitted).}

²⁹ _{At [26].}

³⁰ _{At [33]–[34].}

³¹ At [35].

Babulal, is not an error of law. Nonetheless, I continue to adhere to the view expressed by Fogarty J in Ewebiyi and would apply that view in the present case if I thought that I could do so. I consider it necessary to express this view in case my reading of the Court of Appeal’s decision Singh is in error.

Decision 4: Dong v Chief Executive of the Ministry of Business, Innovation and

Employment (decision of Nicholas Davidson J)

[54] Again, the issue before Nicholas Davidson J was the same; namely, whether the IO failed to comply with the s 177(5) recording obligation.³² Again, it was submitted by Dr Deliu for Mr Dong that the decision was in error because there was no reference in the IO’s decision to any facts about Mr Dong’s personal circumstances, other than the inference that some such facts are, or may be, in the sources of information itemised in the decision.

[55] After setting out the purpose and scheme of s 177, Nicholas Davidson J considered the IO is obliged by s 177(5) to record the facts relevant to New Zealand’s international obligations:³³

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.

[56] His Honour said that a “record of the record” is not enough to discharge the s

177(5) recording obligation:³⁴

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.

[57] In saying that, Nicholas Davidson J did not go as far as requiring a detailed, analytical synthesis of the facts in order to discharge the s 177(5) recording obligation, as this would be tantamount to requiring disclosure of reasons, and put

_{before the applicant material which would impugn the way in which the decision}

³² Dong v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC

_1468.

³³ _{At [45].}

³⁴ At [31].

was reached. He said it was enough to briefly record the facts, something along the lines:³⁵

Information about the applicant’s personal relationships included:

• His partnership and marriage to Mrs Liu

• The future of that relationship should he be deported to China...

(etc).

[58] Accordingly, the outcome in that case was that the IO had failed to discharge the recording obligation contained in s 177(5). The judicial review application was successful in that regard. Although Nicholas Davidson J noted Mr Dong may gain little by the relief granted,³⁶ the IO’s decision was nevertheless remitted back to the decision-maker to identify the relevant facts, if any, that triggered the application of New Zealand’s international obligations.

So what is the IO’s recording obligation under s 177(5)?

[59] There is no dispute that this Court continues to have jurisdiction to review an IO’s compliance with the requirements of s 177, particularly s 177(5). There is also no dispute that the scope for judicial review is “extremely limited” to Wednesbury unreasonableness. The real task in this case, as in all of the cases I have reviewed, is deciphering what it is that the IO is obliged by s 177(5) to record. Whatever it is, any failure by an IO to record the requisite information will amount to a reviewable error.

[60] I respectfully disagree with Duffy J’s view that Lang J’s view on the IO’s recording obligation in Babulal was explicitly approved by the Court of Appeal in Singh and that therefore this Court is bound by it. Although the Court of Appeal did approve Lang J’s comments about the “extremely limited” scope of judicial review under s 177 generally, nothing was said about his Honour’s interpretation of what is required of an IO by s 177(5). Indeed, the issue in Singh did not require the Court to

_{consider the scope of an IO’s recording obligation under s 177(5), and consequently,}

³⁵ _{At [49].}

³⁶ At [50].

in my view the Court of Appeal cannot be said to have spoken about and provided direct authority on the issue.

[61] The Court did however observe in its summary, that while s 177 imposes “minimal obligations on the IO”, the IO is obliged “to record a description of the applicable international obligations and the relevant personal circumstances”.³⁷

Referring to s 177(5), the Court said: “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”.³⁸ The Court’s use of the phrase “(related) facts” (i.e. facts relating to international obligations) is in my view an interpretation that is consistent with Fogarty J’s in Ewebiyi;³⁹ requiring the IO to select facts relevant to the applicable international obligations from the body of information, either provided by the deportee himself or assembled by the IO, concerning the deportee’s personal circumstances.

[62] The Court’s use of the qualifying word “related” or “relevant” before the word “facts”, in its summary of s 177(5), is redundant when, under the Babulal approach, it is enough to merely refer to a list of documents containing all sorts of information concerning the deportee because some of that (unidentified) information contains facts about the deportee that the IO deems relevant to New Zealand’s international obligations. The Court of Appeal’s use of the phrase “related facts”, is in my view a clear indication that something more is required – namely, a selection of facts that the IO considers relevant to New Zealand’s international obligations and which are recorded in his or her decision.

[63] For those reasons, I do not consider that the Court of Appeal did specifically endorse the Babulal approach so far as s 177(5) is concerned, and consequently, in this case, where the scope and application of ss (5) is precisely in issue, the Court of Appeal’s decision in Singh does not operate to bind this Court as regards the interpretation of s 177(5) adopted by Lang J, and particularly the nature of the

_{obligation to record required by that provision.}

³⁷ _{At [64] (emphasis added).}

³⁸ _{At [24] (emphasis added).}

³⁹ Note that Fogarty J’s Ewebiyi decision was not referred to in Singh even though it post-dates

Babulal.

[64] Returning then to the principal issue for me to decide in this case: what is the

IO’s recording obligation under s 177(5)? I am guided by two questions:

(a) At what stage in the s 177 process, does the recording obligation arise?

(b) Is the IO required to select and record the facts relevant to the applicable international obligations?

At what stage in the s 177 process, does the IO’s obligation to record arise?

[65] It is first instructive to consider and determine at what point the IO becomes obliged to record the description of the international obligations and the (relevant) facts about the deportee’s personal circumstances in compliance with s 177(5). If it were sufficient to record the facts relevant to any international obligations, at any time during the information gathering process (i.e. when the deportee provides information to the IO concerning his or her personal circumstances under ss (2)), then it follows that the IO has, when recording that information, also concurrently discharged the ss (5) recording obligation, and it would be sufficient to simply list and/or describe the documents in which those facts can be found in the decision.

[66] In my view, however, the recording obligation does not arise during the information gathering process envisaged by ss (2). That is because the obligation to record in ss (5) only arises once the IO has made the decision to consider cancelling the deportation order.

[67] It is only when the information gathering process results in the deportee providing information concerning his or her personal circumstances that is relevant to New Zealand’s international obligations, that an IO must, by the wording of ss (2), consider cancelling the deportation order.

[68] Once that mandatory requirement arises, the IO’s evaluative exercise as to

cancellation is triggered and begins. During the consideration process, the IO is

required, by ss (3), to have regard to any relevant international obligations. It is during this phase that the recording obligation encompassed by ss (5) arises.

[69] To go further, I would say that the recording obligation arises as an immediate consequence after the IO considers cancellation. Both ss (3)(a)-(b) and (4)(a)-(b) give the IO broad decision-making powers. Those sections serve to exclude the court from having any reviewable capacity (a lack of reasons inevitably compromises the ability to scrutinise a decision); leaving the decision as to cancellation in the hands of the IO. Subsection (5) on the other hand, does not concern itself with the decision making process or the IO’s decision itself. All that it does is require the IO to demonstrate and confirm that – whichever way the decision as to cancellation went – he or she did have regard to the relevant international obligations (those being triggered by the relevant facts about the deportee’s personal circumstances).

[70] This then requires the IO to identify which international obligations are engaged and relevant to the decision whether or not to cancel the deportation order. The relevant international obligations can only be identified by reference to the specific facts triggering their application, which necessarily requires the IO to also identify and then record those facts as per s 177(5)(b). How or why the international obligations were considered relevant to the IO’s overall decision is a matter of weight, and is not open for review.

[71] Therefore, to discharge the recording obligation contained in ss (5), it is in my view not sufficient for the IO to simply refer to material recorded at a time before he or she became mandatorily required to consider cancellation and well before a decision as to cancellation was actually made.

[72] To discharge the s 177(5) obligation, the IO must record the relevant international obligations and the facts triggering their application after he or she has embarked upon the evaluative exercise, in order to demonstrate that – whatever decision he or she made in the end – proper regard was taken of the international obligations, and they were indeed taken seriously.

[73] My foregoing analysis necessarily informs the next issue, which is that the IO is indeed required to select and record the facts relevant to the applicable international obligations (this being the approach taken by Fogarty and Nicholas Davidson JJ). I turn to explain why I consider that is so.

Is the IO required to select and record the facts relevant to the applicable international obligations?

[74] In my assessment, the answer is yes. Parliament has chosen and used the word “information” to describe the broad assembly of material provided by the deportee relating to his or her personal circumstances, but has then used a different word – “facts” – when prescribing what it is that the IO is obliged to record. The word “facts” does not appear anywhere else in s 177.

[75] In my assessment, “the facts” which the IO is obliged to record under ss (5), are the particulars of fact about the deportee’s personal circumstances (as opposed to the deportee’s opinion, for example) which the IO has identified and selected from the body of information concerning the deportee’s personal circumstances and which are relevant to New Zealand’s international obligations. This process of selection is required because not all of the information provided by the deportee under ss (2)

may be factual or indeed relevant to New Zealand’s international obligations.⁴⁰

[76] The IO’s obligation to identify and select “the facts” relevant to any international obligation, and then record them, is consistent with the general purpose of the subsection which, as has been succinctly put by Fogarty J, is to demonstrate to the domestic and international community that New Zealand’s international obligations are being taken seriously.

[77] In light of the foregoing analysis, In find that the IO in this case has accordingly failed to discharge her recording obligation by failing to properly identify and record in her decision the facts about Mr Li’s personal circumstances that are relevant to New Zealand’s international obligations. This is a reviewable

_error.

40. Note also that ss (5) is only concerned with facts relevant to any international obligation rather than the decision whether or not to cancel a deportation order.

Section 177(5) is a carve-out from s 177 as a whole

[78] Returning to Lang J’s comment that this interpretation “flies in the face” of the general language of s 177,⁴¹ I respectfully disagree. There are various signposts in s 177 that, for review purposes, lead me to the view that ss (5) is in effect a carve- out from the general language of the section. For example:

(a) The general purpose of ss (3) and (4) is to leave immigration decisions in the hands of the IO so that the integrity of New Zealand’s immigration system is upheld.⁴² However, ss (5) has nothing to do with the IO’s decision as to cancellation or the decision-making process. It is concerned with New Zealand’s international obligations; the purpose of which is to demonstrate to the deportee, the New

Zealand community, and the international community, that New

Zealand is committed to taking international obligations seriously.

(b) The language of ss (5) is markedly different from other provisions of the section. For example, ss (2) and (3) use the word “must” to impose mandatory requirements on the IO, but ss (5) uses the phrase “is obliged”. The only other occasion where reference to an “obligation” is made, is when it is expressed in the negative – for example, the IO is “not obliged to give reasons” (ss 4(a)) or is “not under any obligation... to apply any test” (ss 3(b)(i)). Subsection (2) refers to “information” concerning a deportee’s personal circumstances that is relevant to New Zealand’s international obligations but ss (5) describes this as “facts” about a deportee’s personal circumstances. These linguistic differences must be considered as being deliberate, and indicate the legislature taking a different approach in ss (5) to the earlier subsections and their

_purposes.

⁴¹ _{At [74].}

⁴² See Immigration Act, s 153. See also s 3(2).

(c) Subsection 5 is a new insertion. At the same time Parliament reversed the effect of Ye and Huang, effective from 29 November 2009, for the purpose of confining the scope for a challenge to s 177 decisions, it also introduced the recording obligation for the first time.⁴³ Thus although Parliament did indeed “extremely limit” the scope for judicial review of decisions made under s 177, it also imposed an

obligation which is itself amenable to review. In these circumstances, in my view the Court should recognise and uphold its (albeit narrow) review jurisdiction where it exists.

[79] Lastly, I note that the recording obligation is not onerous in my view. As I have said, ss (5) assumes that the IO has already embarked upon the evaluative exercise, and that a decision as to cancellation has been made. All that ss (5) requires is for the IO to record the international obligations that he or she has considered relevant, and to record the facts which the IO had identified as being relevant to those international obligations and which consequently engaged or triggered their application. Subsection (5) requires nothing more.

Other grounds for review

[80] As I mentioned at the outset of this decision, Mr Li also advanced various other grounds of review. For the reasons I set out below, they are all unsuccessful.

Ground one: breach of legitimate expectation

[81] Under this head, Mr Li contends that the IO acted in breach of his legitimate expectation by proceeding to consider cancellation of the deportation order, but nevertheless failing to comply with her own internal instruction manual provisions. Reliance is placed on policy provisions A1.1; A1.5 and/or A.15.

[82] The provisions relied upon are contained in the INZ Operation Manual (the

_{Manual) which are intended to provide guidance to decision-making by IOs acting}

43. Note this was initially under s 58(8) of the Immigration Act 1987 (which was the then equivalent of s 177(5)) effective from 29 November 2009.

under and pursuant to the provisions of the Act. For example, paragraph A1.1 provides:

Introduction

(a) Good decision making requires attention to process, to how the decision is made, as well as looking at the merits of the case. A fair process is more likely to ensure a fair outcome. Decisions that are not made in the proper manner may be reviewed by the Courts or become a subject of complaint to the Ombudsman (see A9.10).

(b) Making a decision in the proper manner involves acting on the principles of fairness and natural justice which means:

(i) giving the applicant a fair hearing; and

(ii) avoiding bias.

(c) All immigration officers must act on the principles of fairness and natural justice when deciding an application.

[83] The provisions of A1.5 and A1.15 set out factors relative to fairness and decision-making by IOs. For example, A1.5(a) provides that whether a decision is fair or not will depend on factors such as:

• whether an application is given proper consideration;

• whether the applicant is informed of information that might harm their case;

• whether the applicant is given a reasonable opportunity to respond to harmful information;

• whether the application is decided in a way that is consistent with other decisions;

• whether the appropriate reasons are given for declining an application;

• whether only relevant information is considered; and

• whether all known relevant information is considered.

[84] Paragraph A1.15 of the Manual identifies “practical steps towards achieving fairness and natural justice in decision making”. This section is entitled “A1 fairness and natural justice”, and includes reference to:

• processing an application made in the prescribed manner;

• consideration of all the facts and keeping an open mind towards all relevant forms of evidence;

• distinguishing fact from opinion, rumour, allegation, assumption or report;

• application of relevant immigration instructions; and

• informing the applicant of the actual reasons for a decision.

[85] It is clear from these provisions, that they are intended to provide general guidance to IOs making decisions in relation to applications, but not all of the factors identified in the Manual will always apply to every decision. While the general obligations of acting fairly and in accordance with the principles and requirements of natural justice will frequently apply, where, as is the case here, Parliament has made specific provision as to how an IO is to proceed when considering and making a decision regarding cancellation of deportation, the general provisions of the Manual necessarily yield to the statutory provisions.

[86] In other words, the nature and extent of the requirements of natural justice depend on and are informed by context. Here, the statutory context of s 177, and its legislative history, has excluded application of those principles of natural justice that might otherwise apply and which would require the provision of reasons for a

decision.⁴⁴

[87] For the defendant, it is submitted that the provisions of the Manual relied upon by Mr Li are only intended to apply to applications made under the Act and, as

_{Mr Li has no right to make an application under s 177, those provisions of the}

⁴⁴ Section 177(1) describes the nature of the decision as being one within the IO’s “absolute discretion”. Section 177(3)(a) provides that the IO may “make a decision as he or she thinks fit” and in doing so, is not obliged to apply any test or particular test, and is not required to inquire into the information provided by the deportee or any other person. Section 177(4) provides that the IO is not obliged to give reasons for a decision cancelling a deportation order, and specifically excludes the application of s 6 of the Privacy Act 1993 and s 23 of the Official Information Act 1982 from application to the decision and any reasons for it.

Manual have no relevance here. It is further submitted that the Manual in any event contains a specific provision,⁴⁵ which closely follows the wording of s 177, and directs IOs as to how to proceed pursuant to s 177. Accordingly, the IO did follow the Manual when considering cancellation of Mr Li’s deportation order.

[88] However, while it is true that the provisions of the Manual refer to the manner in which IOs are to make decisions when deciding whether to cancel a deportation order, the fact that no application is permitted by s 177(2) does not of itself remove an obligation to comply with natural justice. Indeed, the section contemplates “purported applications” which are not from an application process in any event.

[89] Those principles of natural justice which remain unaffected by the statutory provision nevertheless will continue to apply notwithstanding the wording of s 177, which confers an absolute discretion to make a decision that the IO thinks fit and removes the obligation to give reasons. For example, an IO is required to act without bias, which is an obligation that would exist notwithstanding the conferring of the absolute discretion or removal of the obligation to give reasons for a decision not to cancel a deportation order.

[90] The defendant further relies upon the evidence of its technical adviser, Ms Fruscalzo, who swore an affidavit in the proceeding,⁴⁶ in which she explained the background to the Manual and described it as a mix of a guide to the legal provisions and administrative law principles relevant to immigration decision-making. In particular, Ms Fruscalzo said:

It is important to understand that the paragraphs of the Manual referred to by the plaintiff (A1.1, A1.5 and A1.15) are narrative only and simply provide guidance to immigration officers on the legal principles that apply when making decisions on visa applications (as evidenced by the numerous references to applies, applying, applicant and application).

[91] And she said:

If there is a conflict between any summarised legal provisions or principles, then the actual provisions of the legislation or the legal principles as

⁴⁵ _{See D2.40.10, deportation order may be cancelled.}

⁴⁶ Sworn on 8 April 2016.

determined by the courts apply, rather than any narrative in the Manual that is intended to reflect that law.

[92] The defendant further submits that regardless of which provision of the Manual applies, the Manual and the instructions contained within it are statements of policy which do not override the specific provisions of the Act.⁴⁷ I agree.

[93] Having regard to the specific and prescriptive provisions of s 177 and s 11, Mr Li has not established a basis upon which to found a legitimate expectation for compliance with provisions of the manual that directly conflict with the section of the Act. Accordingly, I find that the plaintiff has failed to make out this ground.

Ground two: breach of natural justice and failure to take all relevant considerations into account

[94] Under this head, Mr Li alleges breaches of natural justice arising from a failure by the IO to afford him a fair hearing by not asking follow up questions during the course of the humanitarian interviews with him, his wife and child. In his written submissions and during the hearing, Dr Deliu confirmed that Mr Li withdrew this ground and the arguments therein were not pursued. Mr Li did, however, advance a number of other matters by which it was alleged that the IO had failed to comply with the principles of natural justice and had failed to take all relevant considerations into account. The matters raised were as follows.

(a) The IO failed to make necessary inquiries about the China/Taiwan conflict and problems of relocating there as a family unit

[95] Section 177(3)(b)(ii) specifically deals with this issue and provides that the IO is not under any obligation, whether by implication or otherwise, to make further inquiries arising from information provided by the deportee or on the deportee’s behalf. Accordingly, Mr Li cannot succeed on that ground.

[96] The defendant, as well as relying on s 177(3)(b)(ii), also notes that during the course of interviewing Mr Li, the IO received detailed information from him

_{regarding his son. It is clear that the interview process was conducted in a}

⁴⁷ See Patel v Chief Executive Department of Immigration [1997] NZAR 267 (CA) at 274.

comprehensive manner and there is no indication from the material before me of any failure to record information provided or advanced by Mr Li or his wife in the course of their interviews. There being no obligation to make further inquiries, Mr Li cannot succeed on this ground.

[97] I note however, that despite not being obliged to do so, the IO did make inquiries by making a search request to the defendant’s Specialist Country Research Branch (CRB) seeking information on a number of issues including: the status of a Taiwanese spouse of a Chinese citizen in China; the status of a Chinese spouse of a Taiwanese citizen in Taiwan; immigration policies and pathways to nationality for a Taiwanese person with a Chinese partner, or a Chinese person with a Taiwanese partner; Chinese primary schooling and the cost of primary schooling in China for non-Chinese nationals; Taiwanese primary schooling and the cost of primary schooling in Taiwan; as well as cultural attitudes towards Taiwanese people in China and Chinese people in Taiwan. In response to this request, the CRB provided the IO with a detailed and comprehensive response. Consequently, although under no legal obligation to do so, the IO did make further inquiries arising from the personal information provided by Mr Li and his wife during the course of their interviews. In any event, there being no obligation to make any further enquiries, the Court cannot review the accuracy or completeness of the information obtained by the IO from the CRB.

(b) The IO failed to act fairly by not giving reasons for her decision

[98] Here, again, Mr Li alleges a failure on the part of the IO to act fairly by not giving reasons for deciding not to cancel the deportation order. Once again, this submission collides with the provision of s 177(4)(a), which specifically provides that the IO is not obliged to give reasons for a decision not to cancel a deportation order. Mr Li cannot succeed on this ground.

(c) The IO breached the obligations of natural justice by taking irrelevant considerations into account, namely by referring to a number of international conventions or covenant provisions “never advanced by the plaintiff”

[99] Mr Li here submits that, notwithstanding that he relied only on Articles 3, 4,

5 and 18 of the UNCROC and Article 23 of the ICCPR,⁴⁸ the IO proceeded to refer to a more extensive list of international obligations in her record. Mr Li submits that the extensive list of international obligations contained in the IO’s decision is an indication that the process of considering the international obligations was “simply pro forma” and the IO did not give “genuine consideration” to the actual issues as required.

[100] However, there is no reason to conclude that the IO did not have regard to the specific international obligations referred to in the letter sent by Mr Li’s immigration consultant dated 30 September 2015.

[101] There is no basis upon which to support Mr Li’s complaint that a pro forma approach was taken by the IO, and indeed there can be no prejudice to him from the IO having considered not only the specific provisions referred to and relied on by him, but also additional and further provisions of the ICCPR; the International Covenant on Economic Social and Cultural Rights (ICESCR) and the UNCROC. However, the task of identifying the relevant international obligations that apply in each case is that of the IO – not the deportee.

[102] For those reasons, I find that Mr Li cannot succeed on this ground of complaint.

(d) The IO failed to take all relevant considerations into account – particularly, the proceeds of crime proceedings brought against Mr Li

[103] Under this head, Mr Li submits that the IO failed to have regard to the fact that he was named as a defendant in a proceeds of crime proceeding commenced against him by the Commissioner of Police. He submits that defending these proceedings from outside of New Zealand would present considerable difficulties,

_{and that his compromised ability to defend these proceedings from outside New}

⁴⁸ By letter dated 30 September 2015, immigration advisers NZ Now Ltd representing Mr Li, forwarded to the defendant, a detailed submission setting out particulars of Mr Li’s background and family life and covering his health and character, Chinese visa issues and making submissions on “relevant international obligations” in which specific reference to articles 5, 7.

14, 18 (UNCROC) and article 23.1 (ICCPR) was made. Enclosed with the submissions were a series of supporting documents, including copies of three passports, Mr Li’s son’s birth certificate and other supporting material including letters of support.

Zealand is a matter that ought to have been taken into account by the IO. Further, Dr Deliu submits there is an inconsistency that is apparent in the approach taken by the authorities, as Mr Li was allowed to remain in New Zealand for a period of years after being served with a deportation order in October 2012 while he faced a criminal charge, but now that the sentence has been served and notwithstanding that he is currently defending the proceeds of crime proceedings, the deportation process is proceeding.

[104] Contrary to his submission however, I note that Mr Li did inform the IO during his RPC interview of the proceeds of crime proceedings, and there is no basis upon which to conclude that this information was not taken into account in the IO’s considerations. Once again, Mr Li’s submission regarding whether or not the proceeds of crime proceeding were or should have been taken into account by the IO when considering cancellation of the deportation order, cannot overcome the specific provisions of s 177(1) and (3)(a). Accordingly, I find that Mr Li cannot succeed on this ground.

[105] In any event, Mr Li will not be prevented or precluded from defending the proceeds of crime proceedings by means of electronic communications from overseas with his New Zealand legal representatives.

(e) The IO breached natural justice by failing to distinguish fact from opinion, rumour, allegation, assumption or report

[106] Under this head, Mr Li submits that the IO failed to comply with the obligations of natural justice by undertaking research that he submits resulted in unreliable information being received and considered.

[107] Here, Mr Li also refers to having advanced a number of concerns he has were he to return to China with his family, including prejudice and social stigma both for his wife and son.

[108] Again, this submission cannot overcome the specific provisions of s 177 and in particular ss 177(1), 177(3). There is no basis to indicate that the IO acted other than bona fide in obtaining further information regarding China and Taiwan as

sought from and provided by the CRB. The weight to be given to any such information, and there being no obligation to make further inquiries, is in my view a complete answer to the plaintiff’s submission.

(f) Allegation of IO failing to genuinely take child’s interests into account

[109] Under this head, Mr Li refers to the decision of Wylie J in Huang v Minister of Immigration,⁴⁹ to support a submission that the IO involved in that case, and who is the same officer who decided not to cancel Mr Li’s deportation order here, had failed to genuinely take the best interests of his son into account, in the same manner as was found to be the case in Huang.

[110] There is, however, no foundation for such a contention here. The fact that the same IO was involved in Huang obviously does not provide any support for the proposition that the High Court’s finding in that case, that she failed to genuinely take the child’s best interests into account, was repeated here. In my view, there is no evidential or legal basis upon which Mr Li could possibly succeed on this ground.

(g) Wednesbury unreasonableness

[111] Under this ground, Mr Li submits that the decision made by the IO not to cancel the deportation order was one that no reasonable decision maker could reach. To make out this ground, Mr Li would need to establish that having regard to the relevant material to be considered by the IO, “there could only be one answer”, namely that the IO should have cancelled the deportation order(s).⁵⁰

[112] Subsection 3(1) of the Act states that the purpose of the Act is to manage immigration in a way that balances the national interest and the rights of individuals. Subsection 3(2)(e)(ii) describes the Act as containing mechanisms to ensure that those who engage with the immigration system comply with its requirements;

_{including mechanisms that “prescribe the system for deportation of people who are}

⁴⁹ _{Huang v Minister of Immigration HC Auckland CIV-2008-404-4139, 6 November 2008.}

⁵⁰ Referring to Singh, above n 10, at [66]; citing ZH (Tanzania) v Secretary of State for the Home

Department [2011] UKSC 4, [2011] 2 AC 166 at [33].

not New Zealand citizens and who fail to comply with immigration requirements,

commit criminal offences...”

[113] In exercising the “absolute discretion” to consider cancelling the deportation order, the IO was therefore required to have regard to the legislative purpose and objectives of the Act, as well as the personal circumstances of Mr Li and his family and, particularly, the interests of his son and the effect upon him of not cancelling the deportation order.

[114] Relevant to the IO’s consideration under s 177 was also Mr Li’s offending history. He was fined in August 2010 for committing two offences under the Education Act 1989.⁵¹ He was convicted on 29 April 2015 of the criminal offence of

obtaining by deception in relation to the same set of facts.⁵²

[115] Those matters, together with the extended period over which he had failed to comply with immigration requirements by working when he did not hold a work visa, were all matters to be considered and determined within the discretion of the IO, and her decision whether or not to cancel the deportation order was within her discretionary power and clearly open to her to make. It could not be seen in any way as being a decision that no reasonable IO could make, and the Court cannot inquire further.

[116] Accordingly, Mr Li also fails on this ground.

Conclusion

[117] In summary, I find that Mr Li has failed on all but one of the grounds upon which he has sought judicial review. I have however decided that the IO’s decision

⁵¹ Mr Li was charged under an assumed name of “Tom Lee” under s 292 of the Education Act in connection with offending in 2009 arising from a commercially motivated venture offering what were described as NZQA accredited courses of study, when such courses were not so accredited.

⁵² Mr Li was convicted on 29 April 2015 under s 240(1)(a) of the Crimes Act, arising from events in 2008 when in exchange for $12,000, he provided a false academic transcript and diploma

issued by the NZAS, to enable the recipient to subsequently obtain an NZQA Diploma in

Business. He was sentenced to four months’ home detention on 15 July 2015. In the sentencing notes, Judge Bergseng noted that the reputation and integrity of educational institutes in New Zealand is important, and any fraud of the system will be seen as New Zealand having a lack of integrity in the market. Further, the sale of false diplomas undermines the education system: see Police v Li [2015] NZDC 13893 at [10].

does not comply with the recording obligation imposed by s 177(5) and this amounts to a reviewable error of law.

[118] Having regard to my conclusion, I consider it is appropriate in this case to adopt the same approach taken by Nicholas Davidson J in Dong so far as relief is concerned. The obligation to record the facts relevant to the international obligations is significant in that it enables the deportee, the courts and any other party interested in the integrity of the process, to be satisfied that the decision of the IO has been made with regard to both New Zealand’s international obligations and the facts of the immediate case relevant to those obligations. The record created pursuant to s

177(5) will provide the essential information to confirm that the requisite process has been complied with.

[119] Accordingly, I direct that the matter be remitted back to the defendant to enable the IO who had the conduct of this process to comply with the recording obligation of s 177(5). While it may be the case that compliance with ss (5) will produce the same outcome for Mr Li, the record of the relevant facts and international obligations will enable him to consider whether the statutorily required process has been followed, and if not, whether the decision not to cancel the deportation order is challengeable. In this regard, I refer back to the Court of Appeal’s comment in Singh in which it observed that a reviewing court can check the IO’s compliance with the requirements of s 177(5) in particular. Without the requisite record required by ss (5), that checking process has effectively been unavailable to Mr Li. Notwithstanding the “extremely limited” scope for review, he is at least entitled to whatever benefits arise from full and proper compliance with s

177(5).

[120] If agreement as to costs cannot be reached, counsel may file memoranda not exceeding five pages in length within 10 working days of delivery of this judgment.

Paul Davison J