Minister of Immigration v Q [2018] NZHC 1071 (16 May 2018)

Last Updated: 7 June 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-848 [2018] NZHC 1071

BETWEEN	MINISTER OF IMMIGRATION Appellant
AND	Q Respondent

Hearing:	2 May 2018
Appearances:	I Carter for the Appellant S Graham for the Respondent
Judgment:	16 May 2018

JUDGMENT OF DUNNINGHAM J

[1] The Minister of Immigration (the Minister) applies for leave to appeal the decision of the Immigration and Protection Tribunal¹ (the Tribunal) allowing the respondent’s appeal against her liability for deportation.

[2] The respondent’s appeal was advanced on the humanitarian grounds set out in s 207 of the Immigration Act 2009 (the Act). Initially, the Minister sought leave to appeal on the grounds that the Tribunal misinterpreted and misapplied the statutory tests in both s 207(1)(a) and (b) of the Act. However, the Minister subsequently narrowed the proposed ground of appeal to whether the Tribunal misinterpreted and misapplied the statutory test in s 207(1)(a) by taking into account the respondent’s absence of fault in her husband’s fraud, when deciding there were exceptional circumstances of a humanitarian nature.

¹ CW(China) v Minister of Immigration [2017] NZIPT 600408.

MINISTER OF IMMIGRATION v Q [2018] NZHC 1071 [16 May 2018]

[3] The Minister points out that the respondent’s absence of fault can be taken into account under the second limb of s 207(1)(a), when deciding whether it is unjust or unduly harsh to deport the liable person, and he is not necessarily seeking a different outcome in this case. Rather he seeks clarification of the law in light of what he says is conflicting case law on this point.

Background

[4] The respondent became liable for deportation from New Zealand because the Minister determined that false evidence had been provided in support of her residence application.²

[5] The respondent was born in China, as was her husband. In 2004, well before he met the respondent, her husband came to New Zealand under a student visa. His mother soon joined him and, based on her then partnership with a New Zealand citizen, mother and son were granted residence in February 2009.

[6] Shortly afterwards, the son went back to China for a holiday, which is where he met the respondent. She then travelled to New Zealand in 2010 with him and they married. He supported her application for residence made on 9 September 2011 under the Family (Partnership) category. She was granted residence in August 2012, and became a permanent resident in 2013. The couple had a son who is a New Zealand citizen by birth.

[7] Subsequently it transpired that the husband’s mother and the husband had relied on false passports to obtain residence in New Zealand. These passports gave incorrect dates of birth and names for the husband and his mother. The mother had obtained these passports because she had previously been denied entry into New Zealand because she had provided false and misleading evidence in support of a temporary visa application.

[8] The respondent’s husband was subsequently charged with producing or passing off a passport knowing it had been forged or obtained fraudulently, and he

² Pursuant to s 158(1)(b)(ii) of the Act.

pleaded guilty to those charges. The husband’s mother was also convicted for her offending and was deported to China.

[9] On 10 May 2017, the respondent was also served with a Deportation Liability Notice because her residence application had been supported by her husband who had obtained his own residence on the basis of a false passport. She says she had no knowledge of her husband’s fraud and she had relied on him to complete her residence application because of her limited English skills. The respondent appealed her deportation under s 207 of the Act, arguing that in her case there were “exceptional circumstances of a humanitarian nature” which meant that deportation would be unjust or unduly harsh both for her and for her four-year-old son.

The Tribunal’s decision

[10] After explaining the background to the appeal and the evidence presented for each party, the Tribunal considered whether the grounds in s 207 had been met in the respondent’s case.

[11] The decision recited the relevant part of s 207, which reads as follows:

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

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

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

[12] The Tribunal referred to the decision of the Supreme Court in Ye v Minister of Immigration, where the equivalent section in the predecessor to the Act was discussed, and where the majority identified that s 207(1)(a) requires the following three ingredients to be established:³

(a) exceptional circumstances;

³ Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].

(b) of a humanitarian nature;

(c) that would make it unjust or unduly harsh for the person to be removed from New Zealand.

[13] In discussing whether there were exceptional circumstances of a humanitarian nature, the Tribunal noted the observations in Ye that they “must be well outside the normal run of circumstances” and, while they do not need to be unique or rare, they do have to be “truly an exception rather than the rule”.

[14] The Tribunal then traversed the evidence on this issue, noting that it had to proceed with the respondent’s appeal on the basis that her husband may or may not be permitted to remain in New Zealand. It placed considerable weight on the fact that the respondent’s four-year-old son is not a Chinese citizen or resident, and consequently may be denied access to the public education and health systems in China. The Tribunal also discussed the difficulties the son would face in acquiring permanent residence and citizenship in China, meaning there could be no certainty that the son’s applications would be successful, especially given the adverse information that may be revealed during background checks of his parents. If he could not obtain residence or citizenship, the evidence was that he may be denied access to public schools, would be unable to obtain medical insurance or government financial assistance, and may face problems obtaining employment. Furthermore, there was psychological evidence that the stress both the parents and the son would face returning to China could result in behavioural problems emerging. The Tribunal found that the respondent’s son’s best interests would be served by his remaining in New Zealand.

[15] The Tribunal also noted that the respondent would lack family support in China, as her parents had effectively disowned her since her husband was convicted of passport fraud. She also had no relationship with her husband’s divorced parents, whereas in New Zealand she had employment and a close network of friends, which would not be replicated in China.
[16] The Tribunal then turned to consider the respondent’s “absence of fault”, which is the aspect of the decision relevant to this application for leave. The Tribunal was clearly concerned about whether that should comprise part of the matrix of exceptional circumstances, or whether it should defer that consideration to the assessment of whether deportation would be unjust or unduly harsh.

[17] The Tribunal then discussed the relevant case law starting with Guo v Minister of Immigration.⁴ In that case, the Supreme Court said (albeit obiter) that:

[10] Eligibility for deportation is usually associated with fault on the part of the person to be deported, most obviously, the commission of offences or misrepresentations on applications for residency. In this context, the present appeals have the unusual feature that those to be deported... are without any fault. For this reason, it could fairly be said that the circumstances in relation to them were “exceptional”. This was accepted by the Tribunal.

[18] The Tribunal’s decision noted, however, that in Guo, the absence of fault was not the only factor taken into account as part of its assessment that there were exceptional circumstances.

[19] The Tribunal then referred to the High Court’s decision in Tuitupou v Minister of Immigration, which also considered when issues of fault should be taken into account.⁵ The decision in Tuitupou involved an appeal of a decision of the Tribunal declining Mr Tuitupou’s humanitarian appeal against deportation, where he had intentionally failed to declare to Immigration New Zealand that he had previous convictions and had been deported from the United States.

[20] The High Court found that:

[43] The purpose of the first enquiry [in s 207] is to identify the existence of exceptional circumstances of a humanitarian nature (if any) that point to why a deportee should not be deported from New Zealand. Here, the Tribunal is looking at two issues:

(a) any humanitarian circumstances that are exceptional to the appellant, (these will inevitably involve matters that are favourable to the appellant's case for remaining in New Zealand, notwithstanding his or her liability for deportation)

⁴ Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.

⁵ Tuitupou v Minister of Immigration [2016] NZHC 2002.

(b) and which exist at the time he or she is liable for deportation (or after).

[44] Obviously, the issue of non-disclosure is not a consideration that is favourable to Mr Tuitupou and, importantly, it did not arise at the time of or following his liability for deportation. Rather, it was the principal cause and reason for his liability for deportation.

[21] The Tribunal noted that the High Court found Mr Tuitupou’s non-disclosure of his prior convictions and deportation was a factor relevant to the Tribunal’s assessment of whether deportation would be unjust or unduly harsh, but was not relevant to the assessment of whether there were exceptional circumstances of a humanitarian nature. However, the Tribunal went on to say:

[115] It is unfortunate that the High Court in Tuitupou v Minister of Immigration did not expressly consider the impact of the Supreme Court’s decision as it relates to fault and the first two ingredients of section 207(1)(a) of the Act. The High Court’s finding that favourable matters are considered when assessing whether there are exceptional circumstances would not rule out consideration of an absence of fault, but then its additional finding that the focus here is on the circumstances which exist at the time the appellant is liable for deportation (or after) is, at least prima facie, at odds with the Supreme Court’s finding. To the extent that the Supreme Court’s decision conflicts with the decision of Tuitupou v Minister of Immigration, it is the former that must take precedence.

[22] In light of these decisions the Tribunal concluded that an absence of fault was not, of itself, an exceptional circumstance. However, it may form part of the overall assessment of whether there are exceptional circumstances of a humanitarian nature, noting that in Guo, the appellants had demonstrated exceptional humanitarian circumstances based “not only on an absence of fault, but a wider consideration of their personal circumstances”. That said, the Tribunal noted that weight to be attached to such a factor would vary from case to case.

[23] The Tribunal then concluded that in the respondent’s case, she had established exceptional circumstances of a humanitarian nature because:⁶

(a) she was well settled and established in New Zealand;

(b) she was entirely innocent of her husband’s wrongdoing;

⁶ At [119] – [122] of the Tribunal’s decision.

(c) she was estranged from her parents in China and has no extended network of family and friends there;

(d) she had independence and security in New Zealand that would not likely be replicated in China; and

(e) her child’s best interests were served by him remaining in New Zealand where he was guaranteed rights and benefits that may not be available in China.

[24] In deciding whether it would be unjust or unduly harsh for her to be deported, the Tribunal again took into account the fact that she lacked culpability for the fraud, and found that it would be unjust or unduly harsh for her to be deported from New Zealand. The Tribunal also found that it would not be contrary to the public interest to allow the respondent to stay in New Zealand, and thus allowed her appeal.

Submissions

[25] The Minister accepts that an absence of fault may be a relevant factor under the “unjust or unduly harsh” balancing analysis in s 207(1)(a), and also when considering whether deportation would be in the “public interest” under s 207(1)(b). However, he considers the Tribunal was in error when it considered her absence of fault as a relevant factor in establishing humanitarian circumstances that are exceptional under s 207(1)(a).

[26] The Minister says the statutory scheme does not intend that an absence of fault may give rise to an exceptional humanitarian circumstance and risks leading to an outcome in some cases where the basis for deportation liability becomes the very reason for allowing an appeal. The Minister says that the overall legislative history of the Act, and more particularly, the amendments introduced to the Act in 2015, exclude the absence of fault as to fraud or supply of inaccurate information as a basis for resisting liability for deportation. The new s 158(1A) “reinforces the conclusion reached in the earlier cases ... [and] is a fairly direct indication ... that knowledge on
the part of the applicant that any of the information is fraudulent is not a necessary element of the grounds for issuing a deportation liability notice”.⁷

[27] If leave is granted, the Minister intends to argue that “humanitarian” should be given its usual meaning and will encompass circumstances where the appellant’s welfare, safety or happiness are compromised. To take into account the absence of fault at the stage of determining whether there are exceptional humanitarian circumstances would “create an avenue for avoiding deportation that has already been taken into account in the policy imposing deportation liability (in the sense the statute is clear an absence of fault does not prevent a person from becoming liable for deportation on the basis of false information)”.

[28] While Guo v Minister of Immigration appears to address this issue directly, when it says that the appellant’s absence of fault meant it could fairly be said that there were exceptional circumstances of a humanitarian nature, the Minister says these comments were strictly obiter, and do not resolve the issue.

[29] In respect of whether the threshold for leave is satisfied, the Minister submits both that it is arguable the Tribunal erred in law, because absence of fault is neither a humanitarian circumstance nor is it exceptional, and that this question of law is of general or public importance. Cases contesting deportation liability under s 158(1)(b) on the grounds set out in s 207 will continue to come before the Tribunal. It is a matter of general or public importance that the determination by the Tribunal of whether or not to make a humanitarian exception in such cases is carried out correctly and according to law. As there is no directly governing authority on this issue, analysis and clarification by the High Court would assist both the Tribunal and future parties to humanitarian appeals under s 207.

The respondent’s submissions

[30] The respondent generally accepts the Minister’s discussion of the law on s 207. Counsel for the respondent agrees that absence of fault is irrelevant to determining whether an individual should be served with a deportation liability notice under

⁷ Panchal v Minister of Immigration [2017] NZHC 2080 at [29].

s 158(1)(b)(ii) of the Act. He also agrees with the Minister that s 207 of the Act permits the Tribunal to take into account a person’s absence of fault, both in deciding whether it is unjust or unduly harsh to deport the person and whether it is in the public interest to do so. However, counsel for the respondent says that is what the Tribunal did in this case and so there was no error.

[31] Where the parties disagreed was over whether the Tribunal took into account the respondent’s absence of fault as a relevant factor when deciding that the respondent had established exceptional circumstances of a humanitarian nature. The Minister says the Tribunal did and may have “tipped the balance in the respondent’s favour” as the other factors present here have not typically satisfied the high threshold of the exceptional circumstances test.

[32] The respondent, though, says the Tribunal did not do this, as it expressly stated that it did not accept that “those without fault have exceptional circumstances”.⁸ Counsel for the respondent also says that, although the Tribunal discussed the respondent’s absence of fault, it is axiomatic that this was not a factor which influenced its conclusion that the respondent had established exceptional circumstances of a humanitarian nature. Should the Court have any doubts as to whether the Tribunal properly excluded this factor as part of its assessment under the first limb of s 207(1)(a), he says the Tribunal listed the factors which it did include under that limb at [126] of its decision saying it weighed the reasons why she was liable for deportation “against the exceptional humanitarian circumstances, namely her settlement in New Zealand, the lack of any family support in China, and the [best] interests of her New Zealand citizen child”.

[33] In summary, the respondent maintains that the Tribunal did not err by taking into account absence of fault to establish exceptional circumstances of a humanitarian nature and, therefore, the Minister has not established the first requirement for granting leave to appeal which is that there is a question of law “capable of bona fide and serious argument”.⁹ Counsel for the respondent says the Tribunal only considered

⁸ At [116].

9. Waller v Hider [1997] NZCA 221; [1998] 1 NZLR 412 (CA) at 412, applied in the immigration context in Minister of Immigration v Jooste [2014] NZCA 23 at [5].

absence of fault as a factor under the second limb of s 207(1)(a) and under s 207(1)(b), and so the Minister has failed to satisfy the requirements of s 245 of the Act and leave should not be granted.

Should leave be granted?

[34] The circumstances in which the Tribunal’s decision can be challenged on appeal are constrained by s 245 of the Act. The provisions of that section, and associated case law, require the Minister to satisfy the Court that:

(a) the decision raises a question of law;

(b) the question of law is “capable of bona fide and serious argument”; and

(c) the question of law is one that, by a reason of its general or public importance, or for any other reason, ought to be submitted to the High Court for a decision.

[35] The respondent suggests that no question of law arises because the Tribunal applied the law in the way contended for by the Minister. I do not agree. While the Tribunal rejected the proposition that “those without fault have exceptional circumstances”, it did accept that exceptional humanitarian circumstances could arise from a combination of personal circumstances, which could include the absence of fault, saying: “an absence of fault in such cases may form part of an overall assessment of exceptional humanitarian circumstances in respect of those appellants”.¹⁰

[36] I consider the Tribunal then applied this statement of law when assessing the respondent’s case. In its discussion of whether there were exceptional circumstances of a humanitarian nature, the Tribunal considered a number of topics under subheadings. These topics included the respondent’s absence of fault. In its conclusion on whether there were exceptional circumstances of a humanitarian nature, it expressly recorded that she was “entirely innocent of her husband’s wrongdoing”, and said “having regard to the above factors, in combination, the Tribunal finds that

¹⁰ At [117].

the appellant has exceptional circumstances of a humanitarian nature”. There is, therefore, a factual basis for saying that the Tribunal took into account her absence of fault in determining whether there were exceptional circumstances of a humanitarian nature. It drew comfort in doing this from the decision in Guo, even though it considered that the decision in Tuitupou excluded fault-based considerations from the first limb of s 207(1)(a).

[37] I then need to consider whether that is an arguable error of law. The Supreme Court in Guo expressly stated that, because the proposed deportees were without fault, “it could fairly be said that the circumstances in relation to them were “exceptional””.¹¹ However, as Mr Carter emphasised, that was not the point at issue in Guo. It was an application for leave to appeal and focused on the threshold for determining whether deportation would be “unjust or unduly harsh”. The Tribunal’s conclusion on the first limb of s 207(1)(a) simply provided the legal context in which the appeal was raised.

[38] Despite this, it is with some hesitation that I reach the view that there is an arguable error of law here given the views expressed by the Supreme Court in Guo. Nevertheless, I am persuaded there is because:

(a) there is some force in the argument that humanitarian circumstances do not relate to absence of fault, but engage personal consequences for the deportee as a consequence of deportation liability;

(b) the respondent accepts that absence of fault should not come into the assessment of exceptional circumstances of a humanitarian nature;

(c) the Tribunal was clearly vexed by what it saw as a tension between the decisions in Guo and Tuitupou; and

(d) it does not appear that the point now advanced by the Minister was debated before the Supreme Court.

¹¹ Guo v Minister of Immigration, above n 3, at [10].

[39] In light of these factors, but in particular, the Tribunal’s concern to know where absence of fault should be taken into account when deciding appeals under s 207, I consider there is a live question of law.

[40] I am also satisfied that it is a question of law that, by reason of its general or public importance, ought to be submitted to the High Court for decision. The question of how our immigration laws are applied is of general importance, and not just of importance to the parties involved in any particular case. It is a matter of public importance that the Tribunal makes humanitarian exceptions to liability for deportation correctly and according to law, and I consider that the Tribunal would be assisted if there was a clear statement of law on exactly how absence of fault is to be taken into account under s 207.

[41] Accordingly, leave is granted to appeal on the following question of law.

Did the Tribunal err in law by considering the respondent’s absence of fault as a factor relevant to its assessment of “exceptional circumstances of a humanitarian nature” in s 207(1)(a) of the Act?

[42] As requested by the Minister, costs are reserved until determination of the substantive appeal.

Solicitors:

Crown Law, Wellington Young Hunter, Christchurch