WU v THE MINISTER OF IMMIGRATION & ORS [2016] NZHC 1309

WU v THE MINISTER OF IMMIGRATION & ORS [2016] NZHC 1309

The Court held that the Tribunal was entitled to have regard to the effects of deportation when assessing whether circumstances were exceptional because the statutory ingredients may legitimately overlap; accordingly leave was refused on that ground. The Court granted leave to appeal and for judicial review on the separate question whether the Tribunal lawfully erred in according no weight to the only information about the Chinese legal status of the appellants' New Zealand citizen child and whether s 228(2) displaces any duty to inquire into that status given obligations under UNCROC and the duty to self-inform in judicial review law, finding those questions novel, arguable and of public...

Citation
[2016] NZHC 1309
Parties
First Applicant: DONGME WU; Second Applicant: WEN ZHONG; First Respondent: THE MINISTER OF IMMIGRATION; Second Respondent: THE NEW ZEALAND IMMIGRATION AND PROTECTION TRIBUNAL; Third Respondent: CHIEF EXECUTIVE MINSTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 June 2016
Procedural Posture
Humanitarian Appeal Against Deportation; Applications for Leave to Appeal and for Judicial Review / High Court Leave Hearing on Applications for Leave to Appeal and for Judicial Review
Outcome
Partially granted: leave to appeal and leave to bring judicial review refused on the issue that the Tribunal unlawfully conflated the s 207(1) ingredients; leave to appeal and leave for judicial review granted on the issue concerning the Tribunal's treatment of information about the Chinese legal status of the...
Legal Topics
Deportation, Humanitarian Appeal (s 207), Duty to Inquire/self Inform, Interpretation of S 228(2), Best Interests of the Child (uncroc), Leave to Appeal (s 245) and Leave for Judicial Review (s 249)
Immigration Law Administrative Law Human Rights Law Children's Rights Law Judicial Review Deportation Humanitarian Appeal (s 207) Duty to Inquire/self Inform +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 14 Party arguments 2
Sign in to unlock

Parties

DONGME WU

First Applicant

WEN ZHONG

Second Applicant

THE MINISTER OF IMMIGRATION

First Respondent

THE NEW ZEALAND IMMIGRATION AND PROTECTION TRIBUNAL

Second Respondent

CHIEF EXECUTIVE MINSTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Third Respondent

Procedural Posture

Humanitarian Appeal Against Deportation; Applications for Leave to Appeal and for Judicial Review / High Court Leave Hearing on Applications for Leave to Appeal and for Judicial Review

Legal Issues

  1. 1 Whether the Tribunal failed to apply separately each element of the s 207(1) humanitarian test and impermissibly conflated consideration of exceptional circumstances with effects of deportation
  2. 2 Whether the Tribunal lawfully accorded no weight to unsubstantiated information about the Chinese legal status of a New Zealand citizen child and whether it had a legal duty to make further inquiries into that status
  3. 3 Whether s 228(2) of the Immigration Act 2009 displaces any duty on the Tribunal to self-inform in light of international obligations under UNCROC

Ratio Decidendi

The Court held that the Tribunal was entitled to have regard to the effects of deportation when assessing whether circumstances were exceptional because the statutory ingredients may legitimately overlap; accordingly leave was refused on that ground. The Court granted leave to appeal and for judicial review on the separate question whether the Tribunal lawfully erred in according no weight to the only information about the Chinese legal status of the appellants' New Zealand citizen child and whether s 228(2) displaces any duty to inquire into that status given obligations under UNCROC and the duty to self-inform in judicial review law, finding those questions novel, arguable and of public...

Court Disposition

Partially granted: leave to appeal and leave to bring judicial review refused on the issue that the Tribunal unlawfully conflated the s 207(1) ingredients; leave to appeal and leave for judicial review granted on the issue concerning the Tribunal's treatment of information about the Chinese legal status of the...

Orders

  • Declined leave to appeal and for judicial review in relation to the claim that the Tribunal failed to properly apply s 207(1)(a) by considering effects of deportation when determining exceptional humanitarian circumstances
  • Granted leave to appeal and granted leave to bring judicial review proceedings on the questions: (a) did the Tribunal err in law in according no weight to information provided about the status under Chinese law of the applicants' New Zealand citizen child; and (b) did the Tribunal have a legal duty to inquire into...