Wu v Minister of Immigration [2016] NZHC 3194 (22 December 2016)

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UNDER	the Judicature Amendment Act 1972 and the Immigration Act 2009
IN THE MATTER	of an application for leave to appeal (against) and review a decision of the Immigration and Protection Tribunal of 25 November 2015
BETWEEN	DONGMEI WU First Applicant WEN ZHONG Second Applicant
AND	THE MINISTER OF IMMIGRATION First Respondent THE NEW ZEALAND IMMIGRATION AND PROTECTION TRIBUNAL Second Respondent _{Cont .../2}

Hearing:	6 October 2016
Appearances:	C Curtis and T G Zohs for Applicants B C L Charmley for Respondents
_Judgment:	_{22 December 2016}

This judgment is delivered by me on 22 December 2016 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

[1] The Immigration and Protection Tribunal declined humanitarian appeals against deportation to China by Ms Dongmei Wu and her husband Mr Wen Zhong. They have two children: Xinyuan, a six-year-old Chinese citizen; and Olivia, a one- year-old New Zealand citizen. They appeal and seek judicial review of the Tribunal’s decision on the basis of how it treated Olivia’s status under Chinese law.

[2] I hold the Tribunal made two errors of law. First, it accorded no weight to the only information it had about Olivia’s citizenship status in the country to which its decision would send her and which was consistent with information on which it had based its own previous decisions. Second, it failed to consider the foreign law and legislative facts upon which it has previously relied in its decisions, as to the implications of deportation on a New Zealand citizen child’s rights and interests. I make declarations to that effect and I quash the decision and remit it back to the Tribunal for reconsideration.

[3] On 16 June 2016, in the Leave Judgment, I granted leave for Ms Wu and Mr Zhong to appeal and seek judicial review on the ground argued here.¹The parties do not take issue with my statement of the facts in that judgment. What follows next largely follows paragraphs [4] to [12] and [41] to [47] of that judgment.

[4] In 2005 Ms Dongmei Wu’s older sister came to New Zealand from China with her husband. Ms Wu’s sister remains here, as a New Zealand citizen, with primary care of three children. Ms Wu also has a brother in China.

[5] In September 2008 Ms Wu’s sister sponsored her parents, and Ms Wu as a dependent child (an unmarried adult child under a certain age and without children), to come to New Zealand under the Family (Parent) category of residence.

[6] Ms Wu began a relationship with Mr Wen Zhong in late 2008. They had a daughter, Xinyuan Zhong, in October 2009. Her parents did not know of Ms Wu’s relationship or the daughter.

[7] After the application was approved in July 2010 Ms Wu and her parents moved to New Zealand in August 2010. Ms Wu did not advise Immigration New Zealand that she had a partner and a child, which would have made her ineligible for a resident visa. Had Ms Wu been ineligible for a visa, her parents would not have qualified either because they would have had two children in China and only one in New Zealand. The “centre of gravity” of their family would have been in China.

[8] Mr Zhong acted as caregiver of Xinyuan in China. In September 2012 they too entered New Zealand, initially on visitors’ visas. Mr Zhong obtained a work visa. Xinyuan subsequently obtained a student visa.

2015 they had a second child, Olivia, who was born in New Zealand and, as the child of a New Zealand resident, is a New Zealand citizen.

[10] In 2013 the Minister of Immigration determined the resident visas granted to Ms Wu and her parents were procured through the concealment of information. In April 2014 they were issued with deportation liability notices. In December 2014 Mr Zhong’s further application for a work visa was declined, making him also liable for deportation. Ms Wu and Mr Zhong appealed against deportation on humanitarian grounds, as did Ms Wu’s parents.

[11] On 25 November 2015 the Immigration and Protection Tribunal allowed the appeals of Ms Wu’s parents. It was satisfied there were exceptional circumstances of a humanitarian nature relating to them. It considered those circumstances would make it unjust or unduly harsh for them to be deported, considering their lack of culpability for the concealment of information.²It considered it would not be

contrary to the public interest for them to remain. In the same decision, the Tribunal found no exceptional humanitarian circumstances applied to Ms Wu, Mr Zhong and Xinyuan.

[Mr Zhong] and [Ms Wu] are also concerned about the status of Olivia if they were to return to China. They are concerned that because of China’s one-child policy they may have to pay a fine. They would also have to pay for her education and for health care, as she is not a Chinese citizen.

[13] The Tribunal inferred that Olivia would most likely accompany her parents, if they were deported, “given that she is still only an infant.”⁴Then in the passages most relevant to this challenge, it stated:

Consulate General in Auckland. She was apparently told that Olivia has no right to become a Chinese citizen, and that it would be necessary for the family to apply for continual visas for Olivia to remain in China, should the family be returned there. In that regard, the Tribunal has been provided with no submissions in connection with the law in China, nor was any evidence provided by or on behalf of the appellants on oath.

[73] Given that Olivia is the child of two citizens of the People’s Republic of China, the Tribunal is not prepared to accept, at face value, that she could not become a citizen of China or that she could not acquire permanent residence in China. No weight can be given to [Ms Wu’s] unsubstantiated bare assertion to that effect. Nor has any evidence been advanced that establishes that there would be any impediment to Olivia obtaining ongoing visas to enable her to remain in China with her parents.

[14] The information provided by the applicants to the Tribunal consisted of an email of 16 October 2015 by Mr Owen Martell, then counsel for Ms Wu, to the Tribunal and the Minister’s counsel attaching two previous determinations by the Tribunal. The email stated:

My client Ms Dongmei WU has contacted the Chinese Consuate [sic] General here in Auckland, and she has been told that her youngest daughter Olivia, who was born in New Zealand, and is a new Zealand [sic] citizen, has no right to become a Chinese citizen.

Ms Dongmei Wu tells me that this would mean that she would need to apply for continual visas for her daughter Olivia to remain in China, should the family be returned there.

Ms Dongmei Wu tells me that it has been exceedingly difficult to have any kind of reply from the Consulate general [sic] of China, and a few days ago she was given this advice.

Additionally, I enclose two cases that are relevant precedents to the Wu, Chang, Wu and Zhong appeals.

[15] Mr Martell deposes the email was resent on 19 October 2015 and receipt was confirmed by the Tribunal on 20 October 2015.

[16] The Tribunal stated the appellants had not adduced any evidence to show that

China imposes heavy penalties on the parents of second and subsequent children.⁵

Inconsistently with there being no evidence, the Tribunal then observed there have been penalties but they have “traditionally varied from province to province”.⁶It said there was no evidence of penalties in Hunan or “if so, why the family could not establish themselves in an alternative part of China”.⁷It cited an October 2015 New York Times article for the proposition that China had recently revoked its one child policy in favour of a two child policy,⁸though it is not clear whether that was in evidence. It reiterated that the appellants bear the responsibility for establishing their claim and considered they had not established they would be forced to bear a penalty “or, if they did, that any such penalty would be prohibitive”.⁹

[17] Finally, in this section of its determination the Tribunal pointed to Ms Wu and Mr Zhong choosing to conceive Olivia knowing they were under investigation as to liability for deportation.¹⁰It acknowledged their view that such matters were not paramount in considering having another child but responded “[t]hey are entitled to express such views but, having made that decision, can hardly point to such a circumstance as being an exceptional humanitarian circumstance”.¹¹It is not clear

_{whether the Tribunal meant that their choice to conceive Olivia
disqualified their}

circumstances, particularly Olivia’s, from being exceptional or from being of a

[18] The Tribunal considered Ms Wu and Mr Zhong “have not established that they will not, given time, be able to re-establish themselves” in China.¹²In relation to the children, the Tribunal concluded:

[91] [Ms Wu’s] children are both at an age where their best interests will be substantially served by being in the care of both of their parents, whether in China or in New Zealand. Their needs at their young ages are predominantly nurturing, development, socialisation, education and health. None of those are established, on the evidence, as being significantly compromised if the children reside in China with their parents.

[93] [Olivia] will remain a New Zealand citizen and will be able to visit family here and eventually return here, if that is what she wishes to do. In the meantime, her parents can make appropriate choices for her in terms of her education. There is no evidence that she faces any particular health-related or other issues that would pose difficulty for her if she were to return to China in the company of her immediate family.

[20] The Tribunal stated, “[g]iven that Olivia is a New Zealand citizen”, it was possible Ms Wu or Mr Zhong “may in future wish to escort her back to New Zealand to visit or for other purposes”.¹³Accordingly the Tribunal cancelled the post- deportation prohibition on Ms Wu’s and Mr Zhong’s re-entry to New Zealand, subject to repayment of any debt due to the Crown in respect of the costs of deportation.¹⁴

[21] Ms Wu and Mr Martell have provided affidavits that, after the Tribunal’s decision, Ms Wu provided Mr Martell with an email exchange she had with the Chinese Consulate, in Mandarin from 1 December to 3 December 2015. A certified translation of that email exchange has been provided together with an affidavit by the certified interpreter. It shows that:

(a) Ms Wu asked the Chinese Consulate if a New Zealand citizen child of Chinese citizen parents can apply for and be granted Chinese citizenship;

(b) after clarifying the parents’ visa status, the Consulate replied saying a New Zealand citizen child, of a New Zealand permanent resident in New Zealand for more than 2 years, who returns to China must apply for a visa and referred her to the Consulate’s website;

180 days and within 30 days of entry the holder would need to apply for a permit for temporary residence.

[22] On 16 June 2016 I dismissed applications for leave to appeal and bring judicial review proceedings on one ground. The Court of Appeal upheld that decision on appeal (in the Leave Appeal).¹⁵I granted leave to appeal, and to bring judicial review proceedings, in relation to two questions relating to Olivia’s status:

(a) Issue 1: Did the Tribunal err in law, by failing to have regard to relevant considerations, in according no weight to the information provided to it by Ms Wu about the status under Chinese law of Olivia, a New Zealand citizen child?

(b) Issue 2: Did the Tribunal have a legal duty to inquire into the status under Chinese law of Olivia, a New Zealand citizen child of Ms Wu and Mr Zhong, in order to address her interests in deciding on their

¹⁵Wu and Zhong v Minister of Immigration & Anor [2016] NZCA 511 [the Leave Appeal].

[23] Section 3(1) of the Immigration Act 2009 (the Act) provides “[t]he purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.” To achieve that purpose, s

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

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

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

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

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

[24] Section 13 of the Act provides “every New Zealand citizen has, by virtue of his or her citizenship, the right to enter and be in New Zealand at any time”, nothing in the Act abrogates the right and “no New Zealand citizen is liable under this Act to deportation from New Zealand in any circumstances”. That is reinforced by s 18(2) of the New Zealand Bill of Rights Act 1990 (Bill of Rights) which provides “[e]very New Zealand citizen has the right to enter New Zealand”.

[25] Part 6 of the Act governs deportation and pt 7 provides for appeals and reviews. Sections 206 to 208 provide for appeals against deportation to the Immigration and Protection Tribunal on humanitarian grounds. Section 207 requires the Tribunal to allow such an appeal “only where it is satisfied that”:

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

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

[26] In interpreting the predecessor to s 207 the Supreme Court, in Ye v Minister of Immigration, invoked the doctrine known as the principle of legality when it stated “[t]his construction gives effect to the principle that Parliament has legislated consistently with international obligations unless the contrary is clearly shown or unless the language used does not allow that outcome”.¹⁶

[27] The Court stated the humanitarian purposes demonstrated in the predecessor of s 207(1) “must be recognised and respected when other decisions are made regarding the removal from New Zealand of persons generally, and particularly when the case involves a parent who has one or more children who are New Zealand

This approach is supported by the principle that the Act should be interpreted in a way that is consistent with New Zealand’s obligation to observe the requirements of applicable international instruments and, in particular, in present circumstances, those of the United Nations Convention on the Rights of the Child (UNCROC).

[28] The Court referred to article 3(1) of the UNCROC which provides that the best interests of the child shall be “a primary consideration” in all actions by public and administrative bodies concerning children.¹⁹The Court considered this meant the provisions of the Act should be interpreted “so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision- making process”.²⁰It also stated “what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test”.²¹

[29] In Guo v Minister of Immigration the Supreme Court noted the differences between s 207 and its predecessor were of no significance for the purposes of that

case.²²I noted the same in the Leave Judgment here, as did the Court of Appeal in the Leave Appeal.²³

[30] In its decision in Guo the Tribunal (including the Tribunal member here) observed that the innocent New Zealand citizen child of a Chinese national was “entitled to have that citizenship given full weight in the Tribunal’s assessment”.²⁴

The evidence before the Tribunal suggests that Ellen will be able to stay in China on a series of visas (if she wishes to retain her New Zealand citizenship) or obtain Chinese nationality; see [Australian] Refugee Review Tribunal Research Response China CHN31574 (13 April 2007). We accept that she cannot obtain Chinese citizenship without relinquishing her New Zealand citizenship, which she can only do on attaining the age of 18 years.

[31] In paragraphs subsequently quoted by the Supreme Court the Tribunal acknowledged the departure of all her family members effectively meant Ellen must leave New Zealand and gave specific consideration to allowing all the appeals in order to avoid her separation from her family or the requirement she move to

China.²⁶The Tribunal was satisfied other factors, including Mr Guo’s involvement

in the drug trade and ineligibility of other family members for visas, outweighed Ellen’s rights at international law.²⁷In considering (and declining) leave to appeal, the High Court and Court of Appeal specifically noted the Tribunal’s careful weighing of these interests.²⁸Leave to appeal was later granted by the Supreme Court. I understand from Ms Charmley that residence was subsequently granted so the appeal did not proceed.

[32] The Tribunal is established under Part 7 of the Act, titled “Appeals, reviews, and other proceedings”. Section 184 states that one of the purposes of that Part is “to

²⁸Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [79] and Guo v Minister of

establish the Immigration and Protection Tribunal, a specialist tribunal to determine

(1) The Tribunal is a specialist body that has the role of deciding appeals and matters by making findings of fact, applying the relevant law, and making a determination.

(2) In carrying out its role, the proceedings of the Tribunal in any particular case may be, as the Tribunal thinks fit,—

[34] The Tribunal’s chair is a District Court Judge and its members are lawyers with appropriate experience (s 219). The Tribunal is required to determine an appeal “with all reasonable speed” (s 222(1)), empowered to “regulate its procedures as it sees fit, subject to this Act and any regulations” (s 222(3)) and the chair is required to “make such directions as are necessary to ensure that appeals and matters are heard in an orderly and expeditious manner” (s 223(1)).

(1) It is the responsibility of an appellant or affected person to establish his or her case or claim, and the appellant or affected person must ensure that all information, evidence, and submissions that he or she wishes to have considered in support of the appeal or matter are provided to the Tribunal before it makes its decision on the appeal or matter.

(a) subject to agreement between the Tribunal and the chief executive, the Tribunal must give the chief executive a copy of the notice of appeal or matter and any information, evidence, or submissions lodged by the appellant or affected person; and

(b) the chief executive must, in the time allowed by the Tribunal for the purpose, lodge with the Tribunal any file relevant to the appeal or matter that is held by the Department.

(3) The Minister, the chief executive, or a refugee and protection officer may also, in the time allowed by the Tribunal for the purpose, lodge with the Tribunal any other information, evidence, or submissions in relation to the appeal or matter as he or she thinks fit.

[36] The other important section in this case, which I consider further under Issue

(1) When considering an appeal or a matter, the Tribunal may seek information from any source.

(2) However, the Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant or the affected person and the Minister, the chief executive, or a refugee and protection officer (as the case may be), and may determine the appeal or matter only on the basis of the information, evidence, and submissions provided by those persons.

(a) Section 229(1) empowers the Tribunal to require the chief executive “to seek and provide information relevant to an appeal or matter, and the chief executive must comply, to the extent practicable, with such a requirement” though s 229(3) provides “[n]o party to the appeal or matter may request the Tribunal to exercise its powers under this section”.

(b) Section 230 requires the Tribunal to disclose prejudicial material to an affected person and to give them an opportunity to rebut or comment on it in a reasonable time.

(c) Section 233(1) requires the Tribunal to provide an oral hearing of an appeal against liability for deportation by a resident or permanent resident.

Schedule 2 empowers the Tribunal to take evidence on oath and to summon witnesses and also provides:

(1) The Tribunal may receive as evidence any statement, document, information, or matter that in its opinion may assist it to deal effectively with the subject of the proceedings before it, whether or not it would be admissible in a court of law.

(1) For the purposes of any of its proceedings, the Tribunal, or any person authorised by it in writing to do so, may—

(b) require any person (including any government agency) to produce for examination any papers, documents, records, or things in that person’s possession or under that person’s control, and to allow copies of or extracts from any such papers, documents, or records to be made:

(c) require any person (including any government agency) to provide, in a form approved by or acceptable to the Tribunal, any information or particulars that may be required by it, and any copies of or extracts from any such papers, documents, or records.

(2) The Tribunal may, if it thinks fit, require that any written information or particulars or any copies or extracts provided under this clause be verified by statutory declaration or otherwise as the Tribunal may require.

(3) For the purposes of its proceedings, the Tribunal may of its own motion, or on application, order that any information or particulars, or a copy of the whole or any part of any paper, document, or record, provided or produced to it, be supplied to any person appearing before the Tribunal, and may in the order impose such terms and conditions as it thinks fit in respect of such supply and of the use that is to be made of the information, particulars, or copy.

[38] Section 6 of the Evidence Act 2006 states its purpose is “to help secure the just determination of proceedings”. Section 7 states the fundamental principle that “all relevant evidence is admissible” and “[e]vidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”.

[39] In addition, the Tribunal has promulgated a Practice Note to which it referred in a letter to Mr Martell of 14 July 2014 before the hearing. In addition to repeating a number of provisions in the Act and Schedule 2, the note provides, relevantly:

(b) “No evidence may be filed following an oral hearing except by leave of the Tribunal. Leave may be sought for the filing of new evidence at any time prior to the date of the Tribunal’s decision. A copy of the request should be sent to the other party.” ([28.1]).

Issue 1: Was the Tribunal entitled to accord no weight to information about the citizenship status of Olivia?

[40] Ms Curtis, for Ms Wu and Mr Zhong, submits the Tribunal erred in law by disregarding the information their former counsel provided to it about Olivia’s citizenship status in China. She says it concerned a matter of significance and should have been considered and accorded weight.

[41] Ms Charmley, for the Crown, submits the attribution of weight to information by the Tribunal was a matter for the Tribunal and it did not err here. She says Chinese permanent residence rules suggest Olivia will be entitled to apply for permanent residence if she is returned to China.²⁹That is consistent with the

²⁹Based on The Measures for the Administration of Examination and Approval of Foreigners’ Permanent Residence in China, approved by the State Council on 13 December 2003 and promulgated by Order No 74 of the Ministry of Public Security and the Ministry of Foreign Affairs on 15 August 2004.

residence.³⁰Ms Charmley submits the Tribunal carefully considered the children’s interests and the interests of a New Zealand citizen child do not automatically trump all other considerations,³¹so the Tribunal was correct to find the daughters’ interests did not amount to exceptional circumstances.

[42] Both the process by which the information was considered, and the substance of the information, are relevant to considering whether it was lawful for the Tribunal to accord it no weight.

[43] Ms Wu and Mr Zhong were responsible under s 226 to ensure all information they wished to have considered in support of their appeal was provided to the Tribunal before it made its decision. The Tribunal identified Ms Wu’s and Mr Zhong’s concern about Olivia’s status,³²but was critical of the lack of submissions on Chinese law and any evidence provided on oath.³³However it is not clear the

Tribunal’s Practice Note allows submissions, as opposed to evidence, to be filed after a hearing. And if the Tribunal wished to receive evidence on oath it could have granted to leave for that. Section 228(1) and cl 8 of sch 2 of the Act entitled the Tribunal to receive the information. Mr Martell’s provision of the information to the Tribunal after the hearing did require leave according to cl 28.1 of the Tribunal’s Practice Note. The way in which the information was identified and discussed in the Tribunal’s decision indicates that leave was effectively given, as it should have been.

[44] The question then is whether, once that (admittedly limited) information became available to the Tribunal, it was entitled to accord it no weight. Ms Wu’s information concerned Olivia’s inability to become a Chinese citizen until the age of

18 and her need to apply for continual visas to remain in China with her family. It satisfied the fundamental principle of relevance recognised in s 7 of the Evidence Act. The Tribunal indicated it was “not prepared to accept, at face value, that Olivia

residence in China”. It indicated “[n]o weight can be given to [Ms Wu’s] unsubstantiated bare assertion to that effect” and there was no evidence Olivia would have any impediment to obtaining ongoing visas to remain in China.³⁴

[45] That is inconsistent with the findings by the Tribunal in Guo (on which the Tribunal member here sat). The Tribunal there accepted a New Zealand citizen child could not obtain Chinese citizenship until she relinquished New Zealand citizenship which she could only do at age 18 and could stay in China on a series of visas.³⁵The Court of Appeal in Ye proceeded on the same basis.³⁶The follow up information

obtained by Ms Wu from the Chinese Consulate reinforces that. As Ms Charmley submits, on the basis of official Chinese documentation, the Tribunal may have been correct that permanent residence is a possibility. But the Tribunal also appears to have accepted the potential need for continual visas in saying there was no evidence “there would be any impediment to Olivia obtaining ongoing visas to enable her to

[46] The Tribunal says it attributed “no weight” to the information. Yet the information was directly relevant to the status of a New Zealand citizen child, Olivia. Olivia’s rights under the Immigration Act, the Bill of Rights and UNCROC would be directly affected by the Tribunal’s decision and her interests are to be “always regarded as an important consideration in the decision-making process”, in the words

of the Supreme Court.³⁸I accept, as I did in another case, the Tribunal is generally

entitled to take its own view of how much weight to be accorded to evidence.³⁹But the information here was consistent with information on which it based its own previous decisions and there was no other information to the contrary on which it apparently relied.

_{information it apparently had about a New Zealand citizen child’s
citizenship status}

³⁹AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at

in the country to which its decision would send her and which was consistent with information on which it based its own previous decisions. It failed to take into account a relevant consideration and was unreasonable in doing so.

[48] The question of whether the Tribunal had a duty not only to consider the information it did receive, but to make further inquiries itself, is more difficult given the legislative exception to the Tribunal’s duties made by s 228. The case law and legislative history regarding that provision is relevant.

[49] When the Immigration Bill was introduced to the House of Representatives in

2006, cl 203, which became s 228, was identical to s 129P(2) in the 1987 Act. Compared to s 228 as it was enacted, the clause did not contain the word “only” (in the discretion that now reads “may determine the appeal or matter only on the basis of the information”).⁴⁰Section 129P(2) had earlier been interpreted by Keith J for the Court of Appeal in a refugee context in Jiao v Refugee Status Appeals Authority.⁴¹Of that section the Court stated:⁴²

It does not of course follow from the discretions conferred on the officer and the Authority and from the contrast with the duties imposed by the other provisions on the applicant and appellant that the officer and the Authority need never use those discretions to seek information. The Authority has decided over 6000 cases since it was established in 1991. Over that time, it has no doubt built up considerable institutional knowledge. Its librarians, according to its latest annual report, provide country information to its members, refugee status officers and lawyers. The members and officers do in practice drawn on such information as indeed is to be seen in the present case. And circumstances may require them to consider whether to exercise those powers in respect of specific matters arising in a particular case.

[50] However, amongst the recommendations in a 343 page report, the Departmental Report to the Select Committee in relation to the Bill recommended “that the Bill be amended to clarify that the Tribunal is not obliged to seek any

provided by the chief executive”.⁴³So the word “only” was inserted in what became

[51] The Select Committee Report was released on 21 July 2008 and the second reading debate was on 5 March 2009. The new subs (2) in what became s 228 was:

[52] I note the definition of “affected person” provided in s 183 extends only to those who are the subject of an application to the Tribunal and does not extend to a New Zealand citizen child.

[53] On 20 July 2009, after the select committee report back and second reading, but before the Committee stages, third reading and Royal Assent to the Bill, the Supreme Court released a decision interpreting the Act the Bill was to replace. In Ye v Minister of Immigration, already discussed above, the Court noted the Immigration Service had introduced a humanitarian interview procedure “to reflect the obligation

to observe art 3(1) and humanitarian concerns generally”.⁴⁴In this context the Court

observed, of the Tribunal’s predecessor, the Removal Review Authority (RRA):⁴⁵

[27] So as to give proper effect to s 47(3), the RRA should take a liberal approach, within its powers, to requiring or seeking further information if that is necessary to address the interests of New Zealand citizen children. A case which goes to the RRA must, however, in terms of s 50, be considered by the Authority on the papers and with all reasonable speed. This means the RRA is ordinarily required to deal with the appeal solely on the basis of information supplied to it by the applicant. The RRA does, however, have power to seek or receive further information after the time for filing information has passed.

[54] The only case touching on s 228 since its enactment is the Court of Appeal’s

_{decision in Fernandes v Immigration and Protection
Tribunal.}⁴⁶_{The Court stated:}

⁴³Immigration Bill: Report of the Department of Labour to the Transport and Industrial Relations

⁴⁶Fernandes v Immigration and Protection Tribunal [2014] NZCA 52, [2014] NZAR 544 at [27].

[27] We agree with counsel for the second respondent that the question of whether, in some exceptional cases, the IPT might have a duty to take proactive steps to make further inquiries does not arise on the facts of this case. If such a duty were to arise, it would likely only be in circumstances where “something relatively obvious is not addressed by the parent(s)”.⁴⁷

[33] We are satisfied that none assists the applicant. The statutory obligation carried by him, by virtue of ss 226(1) and 228(2) of the Act, to place all relevant material about the interests of the son before the IPT, is not in doubt. The circumstances in which the Tribunal might be required to take “proactive steps” under the statutory scheme operating in this area in New Zealand has been carefully spelled out by the Supreme Court in Ye v Minister of Immigration.⁴⁸The international jurisprudence was not discussed in relation to this aspect, no doubt because each case depended upon its own different statutory context. The requirements of procedural fairness will always be informed by the specific statutory provisions concerned, and how they are framed.

[55] There is more general administrative law jurisprudence relating to the duty to self-inquire. But it is not coherent in providing clear patterns as to the circumstances in which such a duty will be imposed. Without citing Ye, Philip Joseph’s authoritative text cites other cases that go both ways, characterises the duty as unwieldy and opposes its use.⁴⁹The text by Graham Taylor is more open to the

existence and usefulness of the duty.⁵⁰This year’s second edition of Matthew

Smith’s text contains a useful identification of a line of cases supporting the view that decision-makers may have a duty to self-inform⁵¹– to “take reasonable steps to acquaint himself with relevant information” as Lord Diplock put it in Tameside.⁵²

Smith also identifies another line of cases taking the view there is no general duty of

_{pro-active investigation but that, in some circumstances, fairness may
demand it.}⁵³

⁴⁹Philip A Joseph Constitutional and Administrative Law in New Zealand (4^thed, Thomson

⁵⁰Graham Taylor Judicial Review: A New Zealand Perspective (Wellington, LexisNexis NZ Ltd,

⁵¹Matthew Smith New Zealand Judicial Review Handbook (2^nded, Thomson Reuters, Wellington,

2016) at [53.3.1] e.g. see Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [94]. Interestingly, New Zealand appellate decisions appear to be more in favour of a duty to self-inform than do High Court decisions.

[56] The cases cited for the last of these propositions are all immigration decisions. That may be because immigration is a context that attracts the heightened attention that usually accompanies human rights interests and international human rights obligations on New Zealand. Even then, of course, a statutory provision can oust such a duty, though the principle of legality applied by the Supreme Court in Ye requires such an ouster to be clear.

[57] Ms Curtis, for Ms Wu and Mr Zhong, relies on the Supreme Court’s decision in Ye, supported by the UNCROC and principle of legality. She submits the Tribunal should have exercised its discretion to seek more information and should have engaged the services of its research facilities, as a specialist decision-making body, in clarifying the information provided. She notes the Tribunal’s reliance in Guo on an Australian Refugee Review Tribunal Research Response on China which it had

been provided with by the appellants.⁵⁴She submits the Tribunal erred because it

did not make further inquiries concerning significant information that engaged the

[58] Ms Charmley, for the Crown, submits the language of s 228 is clear: the Tribunal is entitled to make its decision only on the basis of the information put before it. Imposing a duty, rather than a discretion, to self-inquire would render redundant the deliberate inclusion by Parliament of the word “only” in the section. The Crown says imposing a duty to self-inquire would not only undercut the clear wording of the statute but would place an unduly onerous burden on the Tribunal, which is required by s 222 to act “with all reasonable speed”.

(a) holdings by the courts that circumstances may require the Tribunal and its predecessor to consider whether to exercise its discretion to

(b) a statement by Parliament, in s 228, that the Tribunal does not have a duty to seek any information further than that provided to it by specified persons, not including a New Zealand citizen child, and has a discretion to determine an appeal only on the basis of that information.

[60] I consider the legal dialogue between Parliament and the courts outlined above means the Tribunal does not have the legal duty to make inquiries itself that it had before passage of s 228. But I also consider that section does not completely negate the Tribunal’s duties.

[61] Parliament’s instruction must be given force. The text is clear and the legislative history makes its purpose clear. The Tribunal is not obliged to seek any information further to that provided to it by specified persons. It has a discretion to rely only on that information. But neither the language nor the purpose of the section touches the discretion or duty of the Tribunal to use its own resources. Nor does the section touch the Tribunal’s discretion or duty to rest its decisions on New Zealand and foreign law. And the Tribunal may rely on “legislative facts” a term

coined by Professor Kenneth Culp Davis.⁵⁵As Elias CJ has observed “legislative

facts are general facts, not concerning the immediate parties, which help the tribunal determine the content of law as a matter of policy.”⁵⁶Legislative facts, contained in materials such as official reports and even empirical studies, form the basis of law. They are available to the legislature when enacting a statute and may inform a

⁵⁵K Davis “An approach to problems of evidence in the administrative process” (1942) 55 Harv L

⁵⁶Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [9] and footnote 9. In the footnote, Elias CJ

also observes “Kokott in The Burden of Proof in Comparative and International Human Rights Law (1998), pp 34–35 has drawn attention to the use of such evidence in human rights judging if courts are not to rely on intuitive judgments and to stretch judicial notice unacceptably.” And see McGrath J at [230]-[231] as well as Body Corporate No 207624 v North Shore City Council [2012] NZSC 83, [2013] 2 NZLR 297 at [236]- [237] (per William Young J).

[62] The Tribunal is legally required to fulfil its functions and legally required to exercise its powers consistent with those functions and the purpose of the Act. It has a potentially inquisitorial character. It is a specialist expert body. As Keith J said for the Court of Appeal in Jiao of its predecessor, the Tribunal has no doubt built up considerable institutional knowledge.⁵⁷Its July 2016 Annual Report details its members’ “ongoing professional development by way of annual training, training relation to residence, deportation and refugee/protection law, and participation in local and overseas conferences”.⁵⁸

[63] The Tribunal has wide powers to receive as evidence any information that may, in its reasonable opinion, assist it to deal effectively with the subject of its proceedings. It is not limited to evidence admissible in court. That is appropriate, given the subject matter of its determinations. So, the Tribunal can refer to information it acquires through its own activities and to information that can be characterised as legislative facts. The Tribunal’s reference in its decision in Guo to the 2007 Australian Refugee Review Tribunal Research Response on China was to a

reliable account of foreign law and legislative facts.⁵⁹Ms Curtis provided me with

the 2010 version of this document which is available on the Refugee Review Tribunal website. The Tribunal also referred to foreign law and legislative facts in its decision here, in referring to financial penalties on second children varying from province to province in China and citing the New York Times article regarding revocation of the one child policy.⁶⁰It is not clear to me whether was provided by the parties. And the Crown relied on readily accessible foreign law in referring me to Chinese permanent residency rules in submissions.⁶¹

[64] Here, the context of the Tribunal’s inquiry concerns the human rights and interests of a New Zealand citizen child guaranteed by the Act, the Bill of Rights and international obligations into which New Zealand has entered. The principle of

_{legality construes statutes according to the presumption Parliament has
legislated}

⁵⁸_{Judge Peter Spiller Immigration and Protection Tribunal
Annual Report 2015/2016 (July 2016).}

⁶¹The Measures for the Administration of Examination and Approval of Foreigners’ Permanent

consistently with international obligations unless the contrary is clearly shown or the language does not allow that outcome.

[65] Parliament has decided the Tribunal is not obliged to seek any information further to that provided to it by specified persons and has a discretion to rely only on that information. But a duty to rely on foreign law and legislative facts upon which the Tribunal has previously relied upon in its decisions does not transgress Parliament’s instruction. And the discretion must be exercised consistently with the Tribunal’s functions and the purpose of the Act. Although it is not necessary for my decision here, I do not even rule out the possibility the Tribunal may have a duty to inquire reasonably carefully (but not exhaustively), into foreign law and legislative facts that are readily available to it if that is necessary for it to consider adequately the rights and interests of a New Zealand citizen child. In 2016 such materials are readily available on the internet to an extent they have not been in the past, even in

[66] In considering its exercise of discretion the Tribunal’s concern to make the right decision must be heightened where, as here, the New Zealand citizen child, whose best interests it is required by law to consider a “primary consideration”, is not separately represented and relies on the best efforts of her parents. I consider, at least in these limited circumstances, the Tribunal has a legal duty to consider the foreign law and legislative facts upon which it has previously relied in its decisions, as to the implications of deportation on a New Zealand citizen child’s rights and interests. They are relevant considerations. In doing so the Tribunal must, of course, comply with its natural justice duties, including those in s 230. And, as the Supreme Court stated in Ye, “what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the

[67] Here, the Tribunal did not fulfil that duty. Given the significance of the interests at stake, it needs to do so by reconsidering its decision.

[68] I have found the Tribunal erred in law in failing to consider relevant information provided to it, and in failing to consider the foreign law and legislative facts upon which it has previously relied in its decisions, as to the implications of deportation on a New Zealand citizen child’s rights and interests.

[70] For each error, I quash the Tribunal’s decision, under s 4(2) of the Judicature Amendment Act 1972 and s 245(4)(c) of the Immigration Act, and remit the decision back to the Tribunal to reconsider, fulfilling its duties as I have found them to be, under 5 of the Judicature Amendment Act 1972 and s 245(4)(b) of the Immigration Act.

[71] I also order costs in favour of Ms Wu and Mr Zhong. If costs cannot be agreed, I reserve leave for the parties to file submissions within 20 working days of the date of this judgment.

High Court of New Zealand Decisions

Wu v Minister of Immigration [2016] NZHC 3194 (22 December 2016)