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High Court of New Zealand Decisions |
Last Updated: 29 May 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2017-404-2696
[2018] NZHC 919 |
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BETWEEN
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LUYANG SHEN
Applicant
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AND
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THE MINISTER OF IMMIGRATION
Respondent
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Hearing:
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24 April 2018
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Counsel:
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S O McAnally and B M Hojabri for Applicant N Buter and E Dowse for
Respondent
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Judgment:
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3 May 2018
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JUDGMENT OF WHATA J
This judgment was delivered by me on 3 May 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ...............................
Solicitors: Keegan Alexander, Auckland
Crown Law, Wellington
SHEN v MINISTER OF IMMIGRATION [2018] NZHC 919 [3 May 2018]
[1] Mr Shen seeks leave to bring a civil appeal from a decision of the New Zealand Protection and Immigration Tribunal (the Tribunal). When he applied for residency for himself and his wife he told immigration officials he was in a “genuine and stable” marriage. He did not tell them that in fact during his 12-year marriage, he separated from his wife for 3 years, during which time he fathered a daughter by a different woman and, at the time of the application, was in an intimate relationship with a third woman who was pregnant with his son. Mr Shen claims the Tribunal erred in requiring him prove the relationship with his wife was exclusive at the time of his resident class visa application.
Background
[2] The following narrative is based on an amalgam of the narrative provided by Mr Shen and key undisputed factual findings of the Tribunal.
Mr Shen’s relationships
[3] Mr Shen and his wife met at university in China. They had a very good relationship, marrying after university in 1988, when they moved to Guangzhou together. His wife remained in China when the applicant spent a few years studying in Australia, before returning to begin a business in China in 1992. During this time, in 1990, his wife gave birth to their daughter, Yu.
[4] Mr Shen and his wife separated for a period between 1992 and 1995. During this period, the applicant had a de facto relationship with Ms Wen Liu until he and his wife reconciled in 1995 or 1996. After his wife’s return, Mr Shen became more distant with Ms Liu. He and his daughter moved back to live with his wife. He remained in contact with Ms Liu because she discovered that she was pregnant around this time. Mr Shen believes that he is the father of this girl, named Shitong, however, he has never confirmed it through a DNA test and never obtained guardianship rights.
[5] At about this time Mr Shen began a relationship with Ms Tan. They bought a house together in their joint names. In 2000, Mr Shen began to make plans to immigrate to New Zealand or Australia. He suggested to Ms Tan she might like to accompany him and study or work, but she refused. They started breaking up in mid-
2000, began to date less frequently and broke up sometime between August and October 2000. It so happens Ms Tan became pregnant during this period and later gave birth to a son, Haonan. Mr Shen next saw Ms Tan in late 2001, began dating again and in 2002 became intimate again. He says he then found out Haonan was his child.
The residency applications
[6] Mr Shen applied for residence in New Zealand in June 2001 and for a work permit in August 2001, and included Mrs Shen in those applications. Under the relevant instructions at the time, to be included in the residence application, his wife had to demonstrate that she was legally married to the applicant and that they were in a genuine and stable marriage.
[7] Mr Shen, Mrs Shen and Yu were granted residence on 25 July 2002 and his wife and daughter subsequently became New Zealand citizens. Mrs Shen and Yu moved to New Zealand, but Mr Shen stayed in China. He began arguing with his wife during this period. Mr Shen says that on 15 October 2002, when he was in China and she was in New Zealand, they had a serious argument by telephone. He remembered the date because his father was due to return home that day after receiving his first cancer treatment at the hospital. This was the first time that Mr Shen and his wife talked about getting a divorce.
[8] On 4 March 2014, Mr Shen’s current partner, Ms Tan, lodged an application for residence under the Family (Partnership) category of instructions based on her relationship with the applicant. During the processing of Ms Tan’s application, she submitted a statement to Immigration New Zealand explaining her relationship with the applicant: they had been in a relationship since 1996; they had ended their relationship for a period of time between 2000 and 2001, during which time she gave birth to their son, Haonan; and they recommenced their relationship after meeting coincidentally again in the latter half of 2001.
[9] Given this disclosure, the Minister of Immigration (the Minister) determined that Mr Shen and his wife were not in a genuine and stable marriage during the period in which his residence application was assessed and Mr Shen had provided false and
misleading information in his residence application. The Minister also determined that Mr Shen had concealed relevant information in his application, because he should have provided information about the children from outside of his marriage.
[10] As a result, Mr Shen was found to be liable for deportation under s 158(1)(b)(ii) or the Act. The Minister signed a Deportation Liability Notice for the applicant on 13 April 2017. However, Mr Shen appealed the Minister’s decision, both on the facts and on humanitarian grounds.
The Tribunal’s decision
[11] The primary issue on appeal to the Tribunal, relevant to the present appeal, was whether, on the balance of probabilities, Mr Shen had established that no false or misleading information was provided to Immigration New Zealand in his residence application and that he did not conceal relevant information.
[12] The Tribunal dismissed the applicant’s appeal on the facts. It held:
[78] The Tribunal finds that, on the balance of probabilities, the appellant’s relationship with Ms Tan recommenced in late 2001 or early 2002. The date that he and his wife decided to divorce or “separated” is less relevant than the date he recommenced his relationship with Ms Tan and therefore no longer had an exclusive relationship with his wife. His relationship with his wife, while it may have been entered into with the intention of being maintained on a long-term basis, had not been exclusive since at least 1992, when his affair with Ms Liu began, followed subsequently by his affair with Ms Tan. Even if it was exclusive at the point he made his application for residence, it was not exclusive after the appellant recommenced his relationship with Ms Tan in late 2001/early 2002. The weight of the evidence indicates that after their relationship recommenced, the appellant’s relationship with Ms Tan became more stable and his relationship with his wife deteriorated. Therefore, the appellant has not established, on the balance of probabilities, that he and his wife continued to be in a genuine and stable marriage, as understood by F2.1.1 of instructions, after this point, which was during the period in which his residence application was assessed. Accordingly, the appellant has not established, on the balance of probabilities, that he did not provide false and misleading information about his relationship with his wife in his residence application.
[13] It also held that he had not established that he did not conceal relevant information about his son, Haonan, or his daughter, Shitong, in his residency application.
Threshold for leave
[14] Mr Shen must show the Tribunal erred in law and that the errors of law are ones that by reason of their general and public importance or for any other reason ought to be submitted to the High Court for its decision.1
Grounds of appeal
[15] The notice of appeal identifies two grounds of appeal, namely:
(a) The Tribunal has conflated the applicable definition of a genuine and stable marriage by applying the qualifying definition of “genuine” (which is referable to the parties’ intentions for their marriage when it was entered into) with the definition of “stable” (which refers to the stability of the marriage at the present time, not the genuineness of the parties’ intentions when they were married) and in doing so wrongly concluded that at the time the applicant applied for a residence visa his marriage was not stable because it was no longer exclusive; and
(b) Due to the foregoing error, the Tribunal wrongly concluded:
(i) Not only that the applicant’s marriage at the relevant time was not stable, but also
(ii) That the applicant was motivated to conceal that he had two undisclosed children to women other than his wife because he believed that disclosing such children would reveal that his marriage was not exclusive (being incorrect because exclusivity is not determinative of stability), such error causing the Tribunal to adopt an unduly unfavourable view of the evidence as to whether or not, at the time of his application for a residence visa,
the applicant had sufficient knowledge that the two children in question were indeed his.
[16] With the benefit of oral argument, Mr Shen’s grounds of appeal can be reduced to a single core issue: Whether “exclusivity” is a mandatory relevant threshold criterion of a stable marriage.
Central argument
[17] Mr Coyle submits the Tribunal identifies “exclusivity” as the threshold issue for evaluating whether Mr Shen provided false or misleading information or concealed relevant information about the state of his marriage for the purposes of F2.1 of the Residence Instructions. He contends the issue of exclusivity may be relevant to whether the marriage was genuine but it is not a defining characteristic for a stable marriage. Thus, by elevating “exclusivity” as a mandatory relevant threshold criterion of a stable relationship, the Tribunal unlawfully fettered its discretion. It also adopted, he contends, an unduly moralistic approach that significantly intrudes into the realm of private relationships between individuals and that could not be validly justified by any clear policy objective. In this regard, the clear purpose and object of F2.1.1 is to avoid fraudulent sponsorships, immigration marriages, marriages of convenience or sham marriages. A threshold test of exclusivity, he says, does not further this purpose or object and imposes an unnecessary fetter or limitation on the rights of applicants for residency.
Statutory framework
[18] Section 158(1)(b)(ii) of the Immigration Act 2009 states:
(1) A residence class visa holder is liable for deportation if –
...
(b) the Minister determines that—
(ii) any of the information provided in relation to the person’s, or any other person’s, application, or
purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, or any relevant information was concealed.
[19] A Tribunal may allow an appeal against liability for deportation, relevantly on the facts, where:2
(ca) in the case of an appellant liable for deportation under section 158(1)(b)(ii), the Tribunal is satisfied, on the balance of probabilities, that none of the information provided in relation to the person’s, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, and no relevant information was concealed.
(emphasis added)
[20] For present purposes, under the relevant instructions at the time, in order to be included in the residence application, Mr Shen’s wife had to demonstrate that she was legally married to him and that they were in a genuine and stable marriage. The definition then of “genuine and stable marriage” was:
F 2.1.1 Definition of “genuine and stable marriage”
(a) A genuine and stable marriage is a marriage that the visa or immigration officer determines:
(i) Is genuine, because it has been entered into with the intention of being maintained on a long-term and exclusive basis, and
(ii) Is stable because it is likely to endure.
[21] Against this legislative background, I turn to assess whether leave should be granted as sought.
Assessment
[22] I can respond to Mr Shen’s application reasonably briefly. The central issue resolved by the Tribunal was whether relevant information was concealed by Mr Shen as part of Mrs Shen’s application process. First, for argument’s sake, I am prepared to adopt Mr Coyle’s primary contentions that “exclusivity” is not a mandatory threshold
2 Immigration Act 2009, s 202(ca).
criterion for the purposes of a “stable” marriage as it was defined in 2001, and the object of F2.1.1 is to avoid fraudulent sponsorships, immigration marriages, marriages of convenience or sham marriages. Even so, Mr Shen’s extramarital relationships were prima facie relevant to whether his marriage was stable as at 2001. He needed to persuade the Tribunal why they were not relevant; he failed to do so. To elaborate, he needed to show why the following information was irrelevant: a lengthy period of instability in his marriage, evidenced by his de facto relationship with Ms Liu between 1992 and 1995 and his relationship with Ms Tan from 1996, both of whom bore him children either prior to or during the period of Mr Shen’s application for residency. This is not a matter of moral probity, but of full disclosure about the stability of his marriage. At its highest, therefore, the proposed appeal point is substantively meritless.
[23] Second, it is evident on the face of the Tribunal decision that it addressed the correct question; namely, whether Mr Shen failed to disclose information that was relevant to the stability of his marriage. The salient passage of the Tribunal’s decision at [78] concludes that “the weight of the evidence indicates that after their relationship recommenced, the appellant’s relationship with Ms Tan became more stable and his relationship with his wife deteriorated.” Indeed, it is tolerably clear the references to exclusivity simply arose because of the complete lack of it and Mr Shen’s failure to mention that fact. It does not reveal any undue emphasis on the requirement for exclusivity. Rather, the decision turned on the Tribunal’s assessment of all the facts and evidence.3 No genuine issue of law is raised by the appeal.
[24] Third, exclusivity was not the only factor the Tribunal considered when assessing whether Mr Shen concealed relevant information. An independent hurdle for Mr Shen’s case was the statutory declaration he provided for Ms Tan’s 2014 application, which confirmed he and Ms Shen had separated in 2001 (i.e. during the residence application period).4 The Tribunal found Mr Shen’s explanation that he had made a mistake in that statutory declaration was not credible.5
3 A similar conclusion was reached in Kumar v Minister of Immigration [2016] NZHC 1593 at [52].
4 Shen v Minister of Immigration, above n 1, at [64].
5 At [74].
[25] Fourth, a separate issue was Mr Shen’s failure to disclose his son, Haonan, and daughter, Shitong. Mr Shen was under an obligation to declare all children he had, whether they intended to migrate with him or not.6 The Tribunal rejected Mr Shen’s explanations that he was not confident he was the children’s biological father. The decision relevantly states:
[90] However, the Tribunal notes that the appellant suspected both these children were his, although prior to his residence application being decided this had not been definitively confirmed through DNA evidence (and, in the case of Shitong, he has never sought to have this confirmed). Both children shared his surname. He was, to different extents, either supporting or living with the mothers of the children, at some stage prior to his residence application being approved. Further, while this was not raised with or acknowledged by the appellant, the Tribunal observes that revealing the existence of these children would have cast doubt on the genuine and stable nature of his relationship with his wife.
[91] The Tribunal finds that there is a clear pattern of behaviour on the appellant’s part to conceal relevant information from Immigration New Zealand about his children born out of wedlock. The Tribunal does not accept that, on the balance of probabilities, the appellant did not know Haonan was his son prior to the approval of his residence application.
[26] This finding is not directly challenged on appeal and is not affected by the findings about stability. It provided a sufficient basis to dismiss Mr Shen’s appeal to the Tribunal.
[27] Finally, the issue of the relevance of exclusivity is very particular to the facts of Mr Shen’s application and heavily referable to the concealment in his case. It does not give rise to any question of public or general importance or any other reason that might justify appellate oversight.
[28] Given the foregoing, application for leave to appeal is dismissed.
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6 At [86].
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